Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies

A NORDEM SPECIAL REPORT 2011 A NORDEM SPECIAL REPORT 2011 REPORT SPECIAL NORDEM A

Nils A. Butenschøn and Kåre Vollan With contributions by Bjørn Erik Rasch and Tonje Merete Viken

The Norwegian Centre for Human Rights Nils A. Butenschøn and Kåre Vollan: Electoral Quotas and the Challenges of Democratic Transition in Conflict-RiddenSo cieties A NORDEM Special Report Editor: Siri Skåre

Copyright: Norwegian Centre for Human Rights, (NCHR) The Norwegian Resource Bank for Democracy and Human Rights (NORDEM) Nils A. Butenschøn and Kåre Vollan

Quotations and extracts from this report may be reprinted by permission and if accompanied by source information. This report is published electronically in a pdf version on the NCHR web pages: http://www.jus.uio.no/smr/english/about/programmes/nordem/

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Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies

Nils A. Butenschøn and Kåre Vollan

With contributions by Bjørn Erik Rasch and Tonje Merete Viken

September 2011

Contents 1: Introduction ...... 6

1.1 The Purpose of the Study ...... 6

1.2 The Case Studies ...... 9

1.3 Scope and Limitations ...... 10

2: Power-Sharing Arrangements: Representation and Decision-Making Rules ...... 14

2.1 Democratic Institutions in Deeply Divided Societies ...... 14

2.2 Power-Sharing through Representation and Decision Rules ...... 17

2.3 The Systems of Representation ...... 19

2.4 Methods for Securing Group Representation ...... 25

2.5 Power-Sharing – Decision-Making Procedures ...... 34

3: Broad Overview of Systems ...... 37

3.1 The Americas ...... 37

3.2 Asia-Pacific ...... 40

3.3 Central Eastern Europe ...... 52

3.4 Middle East and North Africa ...... 59

3.5 Sub-Saharan Africa ...... 63

3.6 Western Europe ...... 79

4: Case Study Lebanon ...... 86

4.1 Introduction ...... 86

4.2 Historical and Political Background ...... 86

4.3 Building Democracy in Lebanon...... 94

4.4 The Quota Arrangements and Other Power-Sharing Elements ...... 99

4.5 The Field Study ...... 106

4.6 Main Conclusions and Thoughts for the Future ...... 108

5: Case Study Nepal ...... 110

5.1 Historical and Political Background ...... 110

5.2 The Quota Arrangements and Other Power-Sharing Elements ...... 133

5.3 The Intended Effects – a Discussion ...... 139

5.4 Some Side Effects of the 2008 System ...... 144

5.5 The Field Study ...... 144

5.6 Conclusions and Thoughts for the Future ...... 148

6. Case Study Bosnia and Herzegovina ...... 152

6.1 Historical and Political Background ...... 152

6.2 The Quota Arrangements and Other Power-sharing Elements ...... 159

6.3 The Field Study ...... 169

6.4 Main Conclusions and Thoughts for the Future ...... 171

7: Conclusions and Recommendations ...... 175

7.1 Conflicts and Tools ...... 175

7.2 Quotas and Veto Powers in Conflict-Ridden Societies. Main Findings ...... 175

7.3 Methods for Group Representation ...... 179

7.4. What May Work in Conflict Situations? ...... 192

7.5 The Quota Tool Box ...... 197

7.6 A Feature of Representative Systems ...... 201

Appendices ...... 202

A: A Method for Quotas on the Total Result in a List PR System ...... 202

B: Abbreviations of Names of Electoral Systems ...... 207

References ...... 208

Preface Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies is a project organised under NORDEM, the Norwegian Resource Bank for Democracy and Human Rights at the Norwegian Centre for Human Rights, University of Oslo. The basic purpose is to contribute to the filling in of what we consider to be a gap in our understanding of the significance of the type and design chosen for electoral laws and systems in critical stages of political transition from open conflict to democratic stability in conflict-ridden societies. We look particularly into cases of conflicts between socio-cultural groups mobilised along ethnic, religious, and linguistic cleavages.

This report addresses an aspect of a classical theme in political analysis: How can designing a political system contribute to overcoming deep-seated conflicts in society? Peace agreements after civil wars should seek to overcome the mistrust and enmity between the groups, possibly overcoming the conflict-producing cleavage structure itself. The assumption is that democracy and stability are strengthened if citizens see their interests in terms of socio- economic factors across cultural divides rather than in terms of socio-cultural identities. The recommendation would therefore be to encourage types of political representation that criss- cross cultural divides in society. On the other hand, a democratic system should also reflect real opinions and interests in society as the voters themselves define them. We observe that in most post-conflict societies, the political system tends to be organised along the ethnic divides that defined the previous conflict. The dilemma then is how a democratic principle of representation that tends to reflect group-based identities can contribute to overcoming group- based conflict dynamics. This is where electoral quotas come into the picture: What are the effects of introducing quotas? Will they contribute to democratic stability or rather preserve and strengthen the cleavages that led to open conflict in the first place?

In addition to the three cases of Lebanon, Bosnia and Herzegovina and Nepal, the report includes a broad overview of all relevant systems in the world where such quotas are applied (Chapter 3). We believe that this has a value in its own right as a catalogue of applied quota systems. It furthermore gives a valuable empirical context for the comparative discussion and the “tool box” developed in the concluding chapter. Researcher Tonje Merete Viken wrote a draft version of Chapter 3 and collected the data for that chapter. She also drafted part of the chapter on Bosnia and Herzegovina. Professor Bjørn Erik Rasch, Department of Political Science, University of Oslo, has commented throughout the process on all parts of the report and contributed particularly to Chapter 2. Siri Skåre, Director of International Programmes at the Norwegian Centre for Human Rights, has had the administrative responsibility.

We would like to thank the Norwegian Ministry of Foreign Affairs for their generous support making this study possible and for their patience regarding the completion of the final product. We are also grateful for the invaluable support we received by Norwegian embassy personnel in conducting our fieldwork for the case studies.

Oslo, September 2011, Nils Butenschøn and Kåre Vollan

1: Introduction 1.1 The Purpose of the Study Within the tradition of democratic theory, models of power-sharing can be considered as modifications of the classical liberal principle of 'one person-one vote'. For a variety of reasons, this principle of organising a political order – when strictly applied in national elections – does not always produce institutional outcomes that give every group of citizens adequate protection of their core rights and interests or a fair say in the running of their country. This is because political institutions composed on the basis of aggregate individual votes do not always meet the requirements for reconciling or managing conflicts in societies that are collective in nature. The democratic dilemma that this situation creates is particularly typical of deeply divided societies. Minorities who are constantly and systematically outvoted or otherwise marginalised in the political process might easily feel trapped in a position of democratic deficiency, lose confidence in the political system, and seek non-democratic ways in the struggle for their interests. This is why models of group-based power-sharing are frequently being discussed as ways in which new democratic institutions can replace or be introduced as complementary to existing ones in conflict-ridden societies.

In this way, electoral laws and decision- making procedures can be critical factors in peace processes and mechanisms of transitional justice from open conflict to democratic stability. This study focuses on the significance and application of such factors and mechanisms as they can be observed both in the form of an overview of global trends and in three countries chosen as cases for more detailed analysis: Nepal, Bosnia and Herzegovina, and Lebanon.

On the global scale, we find that countries apply a whole range of constitutional provisions and other formal or informal arrangements and rules meant to secure or facilitate the politics of compromise between groups. Strengthening political stability within the existing constitutional order is normally the aim of such arrangements. They can be found at different institutional levels in a state, and they vary in nature according to the underlying tensions that they seek to address. States with deep-seated geographical divisions will, for example, tend to be organised as federations where the constitutive parts are equally represented in a national decision-making body (i.e., a senate) with qualified veto powers, irrespective of the relative demographic strength of each part. In other situations, the purpose of power-sharing mechanisms can be to accommodate demands for minority rights or to define modes of power distribution between multiple groups of varying sizes within a unitary state. Arendt Lijphart, in one of his well-known studies of power-sharing, explains:

Especially in plural societies – societies that are sharply divided along religious, ideological, linguistic, cultural, ethnic, or racial lines into virtually separate sub- societies with their own political parties, interest groups, and media or communication – the flexibility necessary for majoritarian democracy is absent. Under these conditions, majority rule is not only undemocratic but also dangerous, because

minorities that are continually denied access to power will feel excluded and discriminated against and will lose their allegiance to the regime.1

The use of quota systems, reserved seats and other deviations from the 'one person-one vote' principle might be to secure a proportional representation of votes that would otherwise not be realised. But it might also be used to create disproportional representation (positive discrimination) if that is considered conducive to stability in the society at large. Such arrangements are typically introduced as negotiated outcomes of protracted conflicts between communal groups where the dominating dividing cleavage is ethnic, religious or linguistic, or a combination of the three. Power-sharing along such lines is often described as ‘consociational’ and the corresponding political system as ‘consociational democracy’, a term coined by Arend Lijphart. Lijpart’s work has had a significant impact on contemporary discussions among academics and electoral experts on the questions of power-sharing as a solution to democratic dilemmas in deeply divided societies.

While there might be many good reasons to consider the use of consociational principles in transitions from civil war or authoritarian rule to more democratic governance, the effectiveness of such an arrangement will be contingent on the specific conditions in each case. The most salient factor is naturally whether or not the dominant parties are ready to accept power-sharing and respect agreements to that regard. This, furthermore, reflects the level of mutual trust and polarisation between the groups. In addition, several structural factors will influence the outcome, such as number and degree of contending parties, the balance of power between them, their geographic distribution, the general level of economic and political development in society and the distribution of such resources.

It is also important to pay critical attention to the risks involved in establishing institutions of power-sharing for the sustainability of democratic politics. The most obvious of these risks is that power-sharing arrangements can be very difficult to undo if introduced in the first place, even if the conditions and political dynamics that underpinned the original agreement have changed. A political system based on consociational power-sharing has built-in mechanisms that normally give the parties formal or de facto veto power over constitutional changes or reforms that would substantially reduce their relative power in the system. What is often introduced as a transitional arrangement to facilitate a political agreement in a situation of serious conflict might consequently become a permanent mode for distributing powerful positions in society. On the one hand, such arrangements give the parties a large margin of flexibility in inter-group negotiations, since the central government can only exist as long as the most powerful groups are able to find common ground. This might be conducive for keeping peace and political stability. However, this modus operandi of the system tends to empty the formal political institutions of decision-making power, leaving it in the hands of informal power structures that are controlled by the most important groups. This arrangement is not only a democratic problem — it makes it almost impossible to reform the political system in directions that are considered unacceptable to at least one influential group commanding a veto power.

1 Lijphart 1984:22-23.

An existing system of power-sharing that allows for flexibility and pragmatism in decision- making processes between the parties in power might be very inflexible in other respects, particularly when it comes to adapting to or addressing new conditions and challenges to the established power-sharing arrangement. The arrangement itself will have the probable effect of “cementing” or “freezing” old cleavages in the society that would otherwise dissolve under the influence of economic or socio-cultural developments. The obvious risk in the long run is that inflexible political institutions will stand in the way of dynamic societal developments, which will create mounting discontent, reproduce old conflicts, and undermine the stability that these institutions were meant to secure.

An important challenge to policymakers and advisors in conflict-ridden societies seeking a peaceful and democratic future would therefore be to strike a balance, on the one hand, between building institutional guarantees within which every group and every individual within the group can feel secure and have their basic rights protected. On the other hand, such policymakers and advisors must remain flexible in the face of the unpredictability of democratic politics based on decision-making procedures that presuppose a certain level of mutual trust among the citizens.

In the following, we will study the mechanisms that are actually being used for representation and decision-making in pre- and post-conflict situations, with a particular focus on arrangements that seem to have favourable effects on democratic stability. First, we will present the discourse among academics and experts on theoretical questions relevant to this study (Chapter 2). This will be followed by an overview of mechanisms in use across the world (Chapter 3). Chapters 4 to 6 contain three case studies with detailed assessments of the electoral arrangements and their effects, and Chapter 7 concludes the study, giving recommendations on the basis of what we consider to be the lessons learned so far.

We enter this study with certain expectations that we want to elaborate further. On both representation and decision-making rules, it is likely that there are methods that vary in their efficiency from greater to lesser, and that they offer various degrees of conflict resolution in the short- and long-term perspectives. Not least, the long-term incentives for reconciliation will be discussed. In particular, the following questions will be studied:

 To what extent is representation by a representative group in parliament able (or sufficient) to reduce conflict?  To what extent are formal power-sharing agreements, including veto powers, necessary to establish peace?  To what extent must the group elect its own representatives (as opposed to be quotas on regular party elections) to be able to reduce conflict?  What are the effects of these arrangements (in particular power-sharing) on efficiency and the ability to govern?  What are the long-term effects of these arrangements? Do they deepen the divide between groups or do they contribute to normalising them?

1.2 The Case Studies

1.2.1 Introduction The three case studies include countries that have recently emerged from armed internal conflicts: Lebanon, Nepal, and Bosnia and Herzegovina. The nature of the conflicts varies, as does the degree of stability established after the conflict. Both Bosnia and Herzegovina and Lebanon have introduced a number of arrangements supporting power-sharing between earlier combatants. In Nepal, the constitution currently being drafted is expected to bring forward quota rules ensuring that the social and ethnic groups previously excluded from political life can be properly represented.

The case studies were designed to allow for a more thorough discussion of the effects of introducing certain electoral mechanisms in countries haunted by ethnic or confessional (i.e. religious) conflicts. The purpose is to assess whether the arrangements work as intended and if there are side effects, expected or unexpected, which could have been avoided if they had been considered at an early stage.

1.2.2 Methodology for the Case Studies Each case study consists of an overview of the recent history of the country and a detailed analysis of the electoral system and other power-sharing elements, and the field study that primarily discusses the current challenges as seen by respondents. The field study is based upon interviews with a selection of stakeholders in the country. The purpose of the interviews is partly to get a first-hand view of the intentions behind the relevant power- sharing arrangements, then to make an assessment of how they have worked out in practice, both in terms of providing a safe and peaceful environment and in providing a functional state, and finally to find out whether stakeholders are looking for changes or how they intend to assess the development ahead.

Respondents were selected according to a number of criteria, the most obvious being prominent representatives of the previous conflicting parties. In addition, we interviewed representatives of groups that were being marginalised by the peace agreement (e.g. Romas in Bosnia and Herzegovina), politicians, NGO representatives, academics, etc. In sum, a selection among the following — partly overlapping — groups were interviewed:

 Leaders of the parties in conflict  Political leaders at large within and outside the parliament  Leaders of religious, ethnic, linguistic, social groups whenever relevant  Representatives of possible marginalised groups  Representatives of the government  Representatives of the international community (and in Bosnia and Herzegovina in particular the office of the High Representative, OSCE and Embassies)  Representatives of local governments  Opinion leaders  Think tanks and institutes

To work as an aide memoire during the interviews, a checklist was prepared. The intention of this was not to list a strict questionnaire but to assist in ensuring that we covered the topics relevant for the person being interviewed. The interviews were recorded according to a thematic structure defined. In addition to these formal interviews, a number of meetings of a more informal nature were conducted.

We recorded fourteen interviews in Bosnia and Herzegovina, ten in Lebanon and twelve in Nepal. It should be noted that the countries were chosen partly based upon two of the researchers’ prior thorough knowledge of the countries. The interviews could not, in themselves, provide for a representative selection of respondents from all relevant parts of society. However, with the researchers' background knowledge, the interviews provided for a very useful update on the current status in the country and were an invaluable addition to the facts that were already available to the team.

It should also be noted that ten years ago one of the interviewers2 played an active role as an advisor in Bosnia and Herzegovina on electoral issues and is currently active in an advisory role on the same issues in Nepal. In Nepal, it was made very clear to the interviewees that the purpose of the interview was for the respondents to come up with their own views and not to discuss various alternatives.

The number of interviewees is too low to be subject to statistical analysis and it is the total amount of information we have about the countries that forms the basis for our conclusions and recommendations. Without the researchers' prior knowledge, much of the information collected might have been misinterpreted and too much emphasis could have been put on statements of individuals which were not really representative of the views of the group.

1.3 Scope and Limitations

1.3.1 General The study includes a review of all countries in the world applying quotas to the election of parliament. When describing a country, other elements of power-sharing, such as devolution of powers and decision rules, are included, but countries are not included if they do not also have electoral quotas. The quota arrangements are described regardless of whether their purpose is to reconcile after a war or if it is merely to include groups that the electoral system would otherwise exclude. Countries that have only gender quotas are not included, however, if the country is included in the study for other qualifying reasons, their gender quotas are also described.

In addition, three countries — Lebanon, Bosnia and Herzegovina and Nepal — have been selected for case studies. In these three case studies, the relationship between representation, decision-making rules and devolution of powers is of central concern.

In the end, the purpose of this study is to present a toolbox of electoral quotas that may be applied in certain situations as well as an analysis of their pros and cons. Quota rules have

2 Kåre Vollan

11 aspects that are technically complicated and the alternatives may be of interest in a post- conflict situation, even if they, up to this point, have been applied in a context that differs from the present examples.

Three kinds of sources have been applied in compiling data for this study: To the extent possible within the resources available, we have used primary sources as bases for empirical presentations, including the overview of global patterns. Interviews with representatives of conflicting parties, as well as country experts, were conducted in order to strengthen the analysis of the three selected cases. A broad range of academic works were also consulted in developing the theoretical and analytical perspectives. In addition, the authors have considerable experiences within this field of study, both as researchers and experts in different countries for governmental and non-governmental organisations.

1.3.2 The Broad Overview The broad overview of systems is aimed at giving a comprehensive overview of ethnic, religious and social quotas in parliaments around the world. The overview will be used as a source of information on what systems of group representation are actually in use for whatever purpose, even if they have not originated from a conflict situation. This will be useful when a toolbox of systems is discussed in the last part of the report. At the end of each regional presentation, those systems that are being used particularly for the reduction of conflict will be discussed.

In Chapter 2, power-sharing arrangements are defined as combinations of the following elements:

1. Grand Coalitions 2. Proportionality or representation of groups 3. Devolution of powers 4. Decision-making rules designed to protect groups.

In the broad overview, those countries that have predefined rules for representation of groups have been selected. For these countries, decision-making rules, grand coalitions and gender quotas are also described. Devolution of powers is described for countries selected due to point 2, above, by classifying them as federal or unitary states. Countries with conflicts that are considered to be reduced only by devolution of powers or decision-making rules (including grand coalitions) are not covered in this part unless they also have particular representation of groups according to point 2, above.

It should be noted that parliamentary quotas are in themselves only one of several possible measures to ensure representation of selected groups in state affairs. Quota mechanisms can also apply to the executive, the courts and bureaucracy and they may apply exclusively to the local level of governments. In several countries, requirements for nominations (such as the list composition) are covered in parties’ by-laws. Such countries have not been included here. Countries where group representation is secured solely by appointments are not included even

12 though appointments are described where they come in addition to elected group representation.

Types of Groups

We have already pointed to the distinction between small and large minorities. The concept of ‘group’ may be further elaborated. Groups protected in constitutions and election laws are broadly defined by ethnic, linguistic or religious features. While a rough categorization is applied here, these distinctions are blurred and overlapping. Are Bosniacs, for instance, a religious or ethnic group? While Bosniacs are Moslem by definition, members of the Bosniac group will not necessarily accept that religion is a constituting element of their group identity.

Other types of groups that enjoy quota protection can be professional groups, like workers and farmers in Egypt. Social factors may also trigger protection. Examples are the quotas for youth and disabled (Uganda and Kenya). Protection of all these groups will be discussed here. Gender quotas will be described when other mechanisms of group protection are also present.

Selection of Countries

Countries with quotas have been identified at the outset by use of the Parline database of the Inter-Parliamentary Union and other secondary sources. The information has been verified by the countries’ legislation. Further reading and research has added additional countries. It should be noted that electoral design is an ongoing process all over the world, and a study such as this will inevitably be outdated. This does not, however, lower the value of such a thorough compilation of available legal tools to ensure group representation at a given time in history.

Countries are grouped and presented alphabetically according to the regional breakdown of Freedom House. Countries that are ranked as ‘not free’ on the 2011 Freedom in the World index are only summarily described in the country tables but not in the narrative following the table. Countries that have devolution of powers and relevant decision-making rules in response to an ethnic, religious or social conflict, in addition to group representation, will be discussed in some detail.

Sources

To the greatest extent possible, the quota mechanisms themselves are described on the basis of primary sources, namely, the constitutions and electoral laws of the selected countries. It should be noted that the quality of legislation and their translation into languages these authors may command may vary, and electoral laws may be incomplete, inconsistent, or may even contradict the constitution. Furthermore, the election laws may consist of several pieces of legislation, and it has not always been possible to obtain all the relevant documents. In such rare cases, we have consulted secondary sources to answer questions concerning voter registries, voting rights, etc.

Country profiles

Each country profile contains a thorough presentation of the quota mechanism. In addition, the countries’ political systems are briefly described, with regard to the federal or unitary nature of the state, form of government, and decision-making procedures whenever these are related to the quota rules. Focus is on the technical aspects of the quota. It does not fall within the scope of this part of the study to measure to what extent the quotas affect informal politics.

Such a broad comparative study does not allow for extensive studies of each country. However, each country profile contains a brief background outlining the main conflicts in the country.3 The purpose is to broaden the understanding of the quota systems and the political context in which they work (or don’t work).

For the sake of readability, selected countries are presented alphabetically and grouped by continent or parts of continents. Some of the quota mechanisms represent differing national solutions to cross-border conflicts, such as Hutus and Tutsis in Rwanda and Burundi, and some of the former Yugoslav republics. This gives some advantage to the subdivision. However, this breakdown is primarily for pedagogical reasons, and we do not attempt to draw a causal line from geographical situation to the quota systems that are applied in each individual country. Some rough patterns may be distinguished, namely, the relatively extensive use of linguistic quotas in Europe, and social quotas in Africa. We aim to describe, not to explain, such patterns wherever they occur in our material.

3 In addition, Chapter 4 contains case studies of three conflict-ridden countries with quota systems.

2: Power-Sharing Arrangements: Representation and Decision- Making Rules 2.1 Democratic Institutions in Deeply Divided Societies Every society has divisions between groups of people, reflecting differences in living conditions, religion, education, culture, and so on. Some divisions are easier to handle than others, for instance, because they do not concern deep-rooted values and identities. Societies are often described as deeply divided when cleavages are particularly intense, and they run along ethnic, religious or nationalistic lines. Ethnicity is a contested concept, but it is usually defined broadly in terms of shared beliefs of common ancestry, shared customs and cultural features, common language, and the like.4 The configuration of conflicting groups – whether divisions rest on ethnicity, culture, religion or other factors – may vary a lot: A majority could dominate minorities, a minority group could dominate other parts of the society (the majority), a balanced configuration with a relatively limited number of groups is a possibility (bipolar or multipolar conflict), as well as a highly fragmented situation with no dominant group at all.5 Lijphart used the term plural society to describe societies with deep and lasting segmental cleavages of a “religious, ideological, linguistic, regional, cultural, racial, or ethnic nature.”6 Rabushka and Shepsle use the term more narrowly: A plural society is culturally diverse, and the feature that distinguishes it from a pluralistic society is that politics almost exclusively follow ethnic cleavages.7

Deeply divided multi-ethnic societies may choose different models for their state structure.8 The classical liberal state puts emphasis on the individual and gives equal rights and opportunities to each individual, regardless of what segment of society the individual belongs to. The problem with this model in deeply divided societies is that there may be a long distance from the theoretical equality to the actual possibility for all to exercise their right in full. A different model is the “consociational state” or a state based on forms of power- sharing between groups. Power-sharing may be by tradition or by design or both. In deeply divided societies, power-sharing may be a necessary condition for a democratic system to work and even for civil peace. Power-sharing may not be written into the constitution but rather be a strong element of the political tradition (like grand coalitions in Switzerland). In

4 After discussing conceptual issues, Fearon 2003 presents data on ethnic structure in 160 countries in the early 1990s. More than 800 ethnic groups are identified. See also Chirot 2009.

5 Rabushka and Shepsle (1972) thus distinguish between four types of deeply divided societies: Fragmented, balanced, dominant minority and dominant majority. Each configuration has its own challenges.

6 Lijphart 1977: 3-4. The term “segmental cleavages” was taken from Eckstein’s 1966 study of division and cohesion in Norway.

7 Rabushka and Shepsle 1972: 20-21

8 For an overview, see Lijphart 1977, 2008, Sisk 2006 and Reynolds 2011.

15 some cases, power-sharing arrangements are vital elements of formal peace agreements and are laid out in detail (for example, the Dayton Agreement in Bosnia and Herzegovina).

Power-sharing may take different forms, and four basic characteristics are often accentuated. Together, they define consociational democracy, and each of them implies some kind of deviation from (pure) majority rule and the principle of ‘one person-one vote’. Grand coalition is the primary feature of consociational government, but broad-based coalitions are complemented by the following three secondary instruments:9

1. Grand Coalition. Power-sharing can take the form of broad-based governmental coalitions. This implies that all the main political forces are invited into central decision-making bodies, thereby ensuring that no significant minority is permanently excluded from exercising political power. In parliamentary systems, grand coalition may mean that the cabinet includes the political leaders of all significant groups or segments of the society. In systems without an executive body accountable to the parliament (e.g. presidential ones), a variety of arrangement are available to serve the same purpose of inclusive decision-making. Grand coalitions may blur the distinctions between government and opposition or leave the country without a formal opposition. In turn, it could also limit political contestation.

2. Decision-making rules: Minority veto or mutual veto. Minority groups may not only be included and given participation rights, they may also be granted veto power (formally or informally), in particular with regard to vital interests. For instance, the veto option guarantees that a group will not be outvoted when its autonomy is at stake. Alternatively, the decision-making rules may be designed to protect a minority from changes by the majority by qualified or double majorities. Super-majority requirements and the like are, of course, a weaker type of minority protection than veto power. In any case, consensus may be the underlying goal.

3. Proportionality. Power-sharing implies that arrangements for representation are utilized at every level of political life – nationally, regionally and locally. The purpose is to give (almost) every group in society access to decision-making bodies according to their overall size, and to allocate scarce financial resources in the form of state subsidies in roughly the same way.10 The electoral system is the instrument by which votes are translated into seats in assemblies, and its design is crucial for how – and to what extent – segments or (minority) groups are represented. Below, we will have a lot more to say about electoral systems and methods of securing minority representation.

4. Segmental group autonomy or federalism. Segments of society (here called groups) may have rights to a well-defined autonomy. Devolution of powers may take care of this aspect. In federal states, this may be a fundamental condition. If the states are

9 See Chapter 2 in Lijphart 1977.

10 Lijphart 1977: 38-41.

drawn up along linguistic or ethnic lines, the power-sharing is protected by the definition of powers of the states versus the centre. Other forms of autonomy for groups may also be envisaged, such as giving ethnic groups the right to their own elected bodies with advisory or even decision-making authority (e.g. Norwegian Sámi parliament).

Some of the principles are interrelated, and in practice, they often occur together. There is no “one size fits all” solution for power-sharing in deeply divided societies. The tradition for consensus policy may be very strong in some countries whereas in other countries the majority will use their powers regardless of strong opposition from minority groups. In this report, we will assess some elements of power-sharing and the effects of formalising the rules. In particular, the representation of groups and the decision-making aspects of such arrangements will be covered (i.e. characteristics 2 and 3, above). Devolution of powers will be discussed only when necessary for the analysis of the primary aspects of the report. As Lijphart emphasises, the grand coalition is a superior principle of consociational democracy, but will only be discussed more indirectly in the sequel.

Several arguments against consociationalism have been voiced over the years. It has been criticized for relying too much on elite accommodation. It has been argued that there is a problem of elite initiated conflict, as political leaders of the various segments may increase their bargaining power vis-à-vis other groups by mobilizing their own group on sectarian grounds.11 A related critique says that consociationalism is problematic in deeply divided societies because it rests on constraints and restrictions against immoderate politics via veto power, instead of incentives for actors to cooperate across segments.12 In short, consociationalism may provide fertile grounds for conflict entrepreneurs, whose powerbase rests on continued conflict, rather than actors of reconciliation. Furthermore, the tendency towards non-democratic decision-making, in the sense of not honouring majority rule and the principle of ‘one person-one vote’, has been emphasized by many.13 Similarly, inefficiency and the risk of deadlock has been an important part of the criticism. If a political system is incapable of producing necessary decisions because of a stalemate, the legitimacy of the system is potentially threatened. Finally, consociationalism has been criticised for facilitating policies of discrimination, for example, related to the tendency of powerful minorities to exploit the system of veto power to protect undemocratic privileges. Such problems are particularly evident in situations of extreme power asymmetry between the groups because the power-sharing institutions, set up on the basis of negotiations between the constituent groups in the society, will tend to reflect the imbalances between them and thus build discriminatory practices into the emerging political system. Injustices will consequently be institutionalised, not abolished.14 Lijphart’s suggestions for a system of power-sharing in

11 See, in particular, Tsebelis 1990.

12 Here, work by Horowitz (e.g. 1985, 1990) is relevant.

13 See, for example, Barry 1975.

14 See Butenschøn, 1985 and 2006.

South Africa in the mid-1980’s (i.e., before the end of Apartheid) that would have preserved the White community as a separate and relatively privileged political community is an example, and was heavily criticised by anti-Apartheid activists and academics at the time.15

Our main reason for focusing on power-sharing arrangements is their prospect for preventing or ending violent conflicts. Power-sharing may also be used to secure civil peace even if there is no immediate danger of conflict. We will concentrate on consociational arrangements (related to representation and decision-making rules) that have a peace-keeping justification. There is a growing body of academic literature that studies the relationship between power- sharing and post-conflict peace, and several have found a positive association.16

Even in a structure based upon power-sharing between groups, the long-term goal may be the development into a liberal state where group identity is less important. In the following discussion, we will therefore also study the long-term effects of formal arrangements for power-sharing and to what extent they are self-magnifying (deepening conflict and the needs for measures) or if they are giving incentives for more equality.

2.2 Power-Sharing through Representation and Decision Rules Special representation for groups may be introduced for different reasons. Our focus is on measures that may reduce conflict at its outset or on arrangements that may reduce the conflict level after an armed conflict. Representation in elected bodies is clearly only one of many such measures and a peace agreement will often have elements of power-sharing as an extension to group representation.

Power-sharing agreements are agreements between groups that regulate the decision-making, independent of the election result. Therefore, it deviates from pure majority rule. The groups of the agreement may be represented according to an election result but the power is shared between the groups according to the agreement, not the balance between parties as a result of an election.

A power-sharing agreement may regulate the composition of the executive or parliament or it may regulate the decision-making process. An example of the first is the presidency of Bosnia and Herzegovina, where each of the three war-faring parties from 1992 to 1995 has one member in the presidency and an equal number of members in the upper house of parliament. In Sudan, until the secession of South Sudan in 2011, the president and the first vice president need to come from different groups (north and south).

The rules for decision-making may vary from a requirement for a qualified majority which guarantees that one group alone cannot pass a decision without at least some support of the other group(s) (Burundi), to firm veto powers of a group over all or some decisions (Bosnia and Herzegovina). In a way, all deviations from a strict majority rule may be seen as a kind of power-sharing agreement. When a qualified majority is needed to change a constitution, it

15 See Lijphart 1985. For a critical discussion of Lijphart, see Jung and Shapiro 1995.

16 See Hartzell and Hoodie 2003, Hartzell et al. 2001 and Binningsbø 2006 for further references.

18 is a measure to ensure that a small simple majority cannot change fundamental rights or the rules of the game.17 The same is the case for requirements for double majorities as required for changes to the US constitution. A much stronger form is where a minority group can veto certain decisions. If a decision concerns fundamental group rights or division of powers between bodies or units, they may not have a very significant effect on the day-to-day government of the country but if they can be applied to large number of decisions such as in Bosnia and Herzegovina, they may represent a hurdle to the functioning of the state as such.18

Group representation in the form of electoral quotas may be introduced alone or together with more extensive power-sharing agreements. They may be introduced only to make a parliament more representative (or to over-represent a group) along an ethnic, linguistic or social dimension in addition to the political one. The purpose can be to broaden the representation and to make sure that the groups have their voices heard before decisions are made. Section 2.4, below, will provide an overview of electoral quotas regardless of whether the purpose is to underpin a peace agreement, prevent an armed conflict or simply to provide broader representation in the elected body.19 Even if an arrangement is used only for representation, the same method may have a conflict-prevention effect in another country.

In the following, we will cover both direct and indirect elections. Systems of representation may be the same in the two cases but, in an indirect election, the inequality is often established in the number of representatives of each group in the upper house of parliament rather by the electoral system.

It is useful to distinguish between small and large minorities, and how dispersed they are geographically, although it is not always possible to draw a sharp line between them.20

A small minority will typically have a strength of a few percent of the population (for example, less than ten), but their characteristics are such that they may need special protection in such areas as the use of language, the promotion of culture, etc. A group which in the country as a whole is a large minority or even a majority, may in some respects constitute a small minority and need corresponding protection. Except when a small minority is geographically concentrated, it will typically not be involved in civil wars and other major conflicts, or it will at least not be among the principal parties to such conflicts.

A large minority runs the risk of losing all influence by systematically being voted down by the majority or a coalition of other large minorities. Protection against this would typically take the form of balancing the group interest within the organization of the state, or by introducing an electoral system that secures a balance between competing groups. To use

17 On constitutional amendment procedures, see Rasch and Congleton 2006.

18 A thorough and sophisticated analysis of the properties of relevant decision-making rules can be found in McGann 2006.

19 A discussion of different types of quotas, see Htun 2004 and Schwindt-Bayer 2009.

20 This and the next paragraph are taken directly from Blanc, Hylland and Vollan, 2006: 3-4.

Bosnia and Herzegovina as an example, the main groups involved in the civil war – Bosniacs, Croats and Serbs – are large minorities in the country as a whole, and each of them may be a majority in certain regions. On the other hand, Romas, Slovenians, Montenegrins, etc. are small minorities.

The purpose of defining small and large groups is to be able to differentiate between groups that could be parties to a peace agreement and those groups that should be guaranteed representation for other reasons. This division is obviously not sharp. Even small groups may use arms in the end to protect their interests if the majority does not respect what they regard as their fundamental rights. In our context, most of the groups in conflict will be ‘large’ but there may be exceptions that, in such cases, will also be covered.

2.3 The Systems of Representation Elections are a central ingredient in the system of representation in modern democracies. They are conducted by a more or less complex set of rules and procedures; electoral systems can be “defined as those rules which govern the processes by which preferences are articulated as votes and by which these votes are translated into the election of decision- makers.”21 Electoral systems are used for many purposes, but what concerns us in this report are primarily legislative elections at the level of nation-states (and not, for instance, presidential elections). There is a broad family of such systems ranging from plurality/majority-based systems, which normally produce an overrepresentation of the largest party to fully proportional systems. It is also possible to design systems that secure overrepresentation of small entities, which is particularly relevant in processes of apportionment (e.g. distribution of seats on constituencies).22 Electoral systems have different qualities regarding group representation and some may be more suited in post-conflict situations than others. In this section, we will first list some criteria for good electoral systems and then give a categorisation of systems that will be used in this report.

2.3.1. Criteria for good systems of representation Blanc, Hylland and Vollan define the following criteria for good systems of representation:23

Even though a large variety of systems are being used in established democracies, some general criteria for good electoral systems can be defined. The weight put on each of them, however, would vary, among experts as well as among political decision makers.

We list some criteria that electoral systems may meet, and discuss briefly some aspects of each. Most of the criteria apply to elections generally, not just to elections in post-conflict situations, but some of them are particularly important in such situations.

21 Blais 1988: 100.

22 Balinski and Young 2001.

23 Blanc, Hylland and Vollan 2006: section 7.4.

Create representative assemblies. In simple terms, this criterion means that a party running in an election shall get a number of seats in the assembly that corresponds approximately to its proportional share of the vote. This is often regarded as the overriding criterion for a fair electoral system, and it is the most important justification for proportional elections. An elected assembly should reflect the political composition of the electorate, as well as other aspects such as geography, gender, etc. The decisions made by the assembly should be representative of the opinions of the electorate.

Support accountability of the elected members. Another important aspect of elections is the relationship between the electorate and the elected member of the assembly. Elections in single-member constituencies are often justified by the need for strong accountability, since a comparatively small electorate will elect its own member of parliament and maintain direct contact with the elected member.

Support stable governments. It has been argued that a fully proportional electoral system may result in an assembly split into a large number of parties, which in turn will lead to unstable coalition governments. The empirical data does not necessarily support this claim, at least not in countries with some kind of threshold for representation.

Give equal weight to each voter. This requirement can be interpreted in various ways when applied to different electoral systems. The most general formulation is that voters shall not be discriminated against on account of ethnicity, geography, gender and so on, except for what may follow from valid affirmative actions.

Resist tactical voting behavior. A system should support an immediate link between the voters' primary preferences and the result. Tactical voting means that the voters do not vote according to their primary preferences. Instead, they vote according to, for example, their secondary preferences, because they believe they can thereby get an advantage.

Be simple for the voters. Systems can be designed to meet many requirements, but could end up being extremely complicated for the voters, both in the sense that it is difficult to cast a valid and effective vote, and in the sense that it is not easy to understand how the system works.

Be simple for the election administration. Systems can be very complicated for those implementing them. However, what may seem difficult to implement, need not be complicated from a voter's point of view. A possible example is the single transferable vote.

Be generally accepted by the parties and the public. Degree of acceptance should be taken into account when choosing a system. This is particularly important in post- conflict elections, because of the level of mistrust, frequently occurring disorder in election administrations, and the immaturity of the party system. One should not, however, refrain from proposing a system one genuinely regards as good, simply because of fear that it will not be accepted.

Promote conciliation among different groups. In post-conflict situations this is an

important criterion, and it is the main focus of this report.

Promote cross-community parties. This is related to the previous item, but is not exactly identical as a criterion for electoral systems. Community may refer to ethnic, linguistic, religious or sectarian groups as well as geographical areas.

Promote dialogue and compromise. The electoral system should in general support dialogue and conciliation in post-conflict situations. Therefore, whenever reasonable, the system should promote compromise candidates instead of extremist ones. However, there are clear limits to what an electoral system can and should do in this respect. If the voters really support extremist candidates, the system should not prevent these candidates from being elected.

Be robust against changes. This may be a fairly technical issue, but a system should be designed in such a way that small changes in some aspect of the system, such as constituency boundaries, will not have a drastic effect on the outcome of the elections. In a system based on single-member constituencies, the drawing of boundaries can significantly affect the outcome, even if it is required that all constituencies be of equal size. If the boundaries are determined through a political process, there is a danger that the present majority will try to perpetuate its power by carefully taking account of how its support is distributed when boundaries are drawn, so-called "gerrymandering".

Respond logically to changing support. Increased support for a party should normally lead to increased representation, with as few unforeseen and illogical side effects as possible.

Be sustainable. This means that even though there may be particular needs in a transitional period, the electoral system should be adapted to a normalized situation and should also support the process of normalization. One should keep in mind that systems which are adopted after a conflict, even if they are tailor-made to the current situation, will create precedent, that is, they will have a tendency to perpetuate themselves. This is particularly true if the international community has been instrumental in establishing the system.

A system should be chosen according to the needs and the historical context of the country. Some choices are nevertheless political and controversial, as many aspects of electoral systems have long-lasting political consequences.24 In most countries, there would be people who strongly believe in proportional systems because of their ability to represent all parties according to their overall votes, whereas for others the accountability offered by first-past- the-post systems in single-member constituencies would be much more important.

In our context, it is the system’s ability to represent groups in conflict and to promote dialogue and reconciliation that would be more important. Again, it is important to stress that there is no 'one-size-fits-all' solution. In some situations, constituencies may be the best solution if a minority is geographically concentrated. In such a case, the regular party

24 See e.g. Lijphart 1994 and Taagepera and Shugart 1989.

22 structure may work across constituencies and promote a long-term goal of 'normalising' political life across group identities. In other situations, a proportional system with the whole country as constituency and a low threshold may offer the best solution because every group with some support in the electorate will have a chance to be represented. That system may, however, give incentives to forming parties with group identities rather than parties formed on a political platform across group identities.

2.3.2 The Classification of Systems of Representation Electoral systems can be classified in various ways, and many classifications are offered in the literature.25 Two dimensions are central to most typologies: Electoral formula (majoritarian or proportional type) and district structure (single-member or multi-member constituencies or some mix thereof). In addition, some also take explicit account of the ballot structure of the electoral system, i.e. what kind of information voters provide through their vote. Several electoral formulas can be used both in single- and multi-member districts. The alternative vote (AV), where voters are allowed to rank candidates, becomes STV when applied in multi-member districts. First-past-the-post or plurality rule has a straightforward application in multi-member districts as the SNTV system.26 It could also be implemented as a block voting system. Proportional electoral formulas are, of course, not designed for single- member constituencies, but if nevertheless applied, they would simply reduce to first-past- the-post.

The classification below is relatively close to the ones in Reynolds et al. 2005 and Blanc et al 2006, but it is not exhaustive with respect to electoral formulas. A further description of the methods can be found in both sources.

Plurality and majority elections in single-member constituencies: – Plurality elections, ‘first-past-the-post’ (FPTP) – Majority elections in two rounds (either top-two run-off or second round plurality) – Majority elections by the alternative vote (AV)

Plurality elections in multi-member constituencies: – Single, non-transferable vote (SNTV, which may result in semi-proportional outcomes) – Elections based on individual candidates, the ‘block vote’27 – Elections based on party lists, the ‘party block vote’

Proportional representation (one nation-wide constituency or several multi-member constituencies):

25 Examples are Blais 1988, Reynolds, Reilly and Ellis 2005, Norris 2004: 41 and Renwick 2010: 4.

26 Cox 1997 has even shown that, under some conditions, SNTV will give the same outcome as the d’Hondt (proportional) divisor rule.

27 In the block vote system, the voter may give as many individual votes as there are seats in the constituency. In SNTV, the voter may only give one vote. The ‘limited vote’ system, where the voter may give more than one vote but fewer than the total number of seats, is not listed here. In parliamentary elections, the only example of a limited vote is to the Senate of Spain (Reynolds et al. 2005)

– List-based proportional systems (List PR) – Formulas based on quotas and largest remainders – Formulas based on divisors and largest averages – The single transferable vote (STV)

Mixed systems (combining single-member and multi-member constituencies): – Dependent (compensatory system): Mixed-member proportional representation (MMP) – Independent (parallel system with separate upper tier, which may result in semi- proportional outcomes)

We will not discuss other methods that are rarely used in parliamentary elections, such as the de Borda count28.

Mixed systems have at least two tiers, and one of the tiers consists of single-member constituencies. Upper tiers also occur in systems with only multi-member districts, but then typically as a set of adjustment seats to improve on the proportionality of election results. The Scandinavian countries and South Africa are examples.

Depending on how one counts it, roughly half of today’s countries and territories conduct legislative elections with systems that belong to the plurality/majority family. Most of the others use (single-tier) proportional representation, but mixed systems have become more and more popular over the last couple of decades.29

2.3.3 The Effect of the System of Representation on Group Representation Each electoral system has its own characteristics when it comes to group or minority representation. Generally speaking, the List PR system will accommodate such representation better than majority/plurality-based systems.

Lijphart states that “[f]or divided societies, ensuring the election of a broadly representative legislature should be the crucial consideration, and PR is undoubtedly the optimal way of doing so”.30

Andrew Reynolds also argues that List PR gives better minority representation than other systems do, without any pre-defined arrangement:

Because List PR systems encourage parties to maximize votes won both in areas where they are strong and areas where they are weak (because every vote is aggregated at a larger level) there exists an incentive to appeal to ‘other’ voters who may not be part of your core ethnic or ideological base. Thus, List PR systems might encourage moderation in ethnic chauvinism and inclusiveness of minorities in campaign appeals. This may be particularly strong if majority parties need minority votes to make it over a given threshold or to have enough seats to form a

28 The election of two minority representatives of the parliament in Slovenia is a rare exception.

29 Reynolds et al. 2005, Golder 2005 and Shugart and Wattenberg 2001.

30 Lijphart 2008: 78.

government. These incentives would dissipate if the party/majority group did not need extra votes and appealing for such votes would lose them members of their core constituency who were opposed to accommodatory overtures to minorities. 31

On the other hand, the majority/plurality systems will normally not accommodate minority representation since the parties will tend to propose candidates belonging to the majority group of the constituency. However, if a minority is geographically concentrated, such systems may still work in a minority’s favour. Reynolds says:

Plurality-majority systems [...] are predisposed to exclude minorities from power, even if the minority’s concentration allows them to win some single-member seats. There are countless cases of minorities clustered in a given geographical area who can win a small number of representatives, but who rarely form part of governing coalitions and cannot mount much of an opposition to majority rule within the legislature. Plurality-majority systems (without extra provisions to ensure multi-ethnic parties) are also likely to accentuate majority–minority polarization and campaigns based on ‘us against them’ and ethnic chauvinism. The most efficient way of winning more votes than the next candidate (if you are the largest group in a district) is to make sure all your group members support you, and the easiest mobilization strategy revolves around appeals to identity and preservation of group interests. If no single group can expect a clear majority in a district, one group may seek alliances with other groups, but such geographic intermingling is rare and alliances, while useful for one district, may alienate core voters in others.32

This means that, everything else remaining the same, a List PR system will be more efficient in providing minority representation than majority/plurality systems, even without any extra measures.

Another advantage of List PR is that the groups do not have to be pre-defined.33 Any group may form a party and take advantage of the system and any group may be included on the lists by parties that want to appeal to the group in a particular election.

Majority or plurality-based systems may work well in cases where the minority is concentrated and the constituencies are drawn up in such a way that the minority gets benefit from the concentration. Under suppressive regimes, the opposite is often the case; the constituencies are drawn to dilute the minority’s influence. It is therefore a challenge to implement such systems for the benefit of a minority if there is a conflict; it will need good will. Changes in the population structure will also not be automatically covered and the arrangements will have to be pre-defined.

Further, List PR systems are easier to combine with methods to guarantee minorities a certain representation. Plurality and majority systems may be combined with certain quota rules but such rules, unless the groups are geographically concentrated, will often have negative side

31 Reynolds 2006: 21.

32 Reynolds 2006: 21-22.

33 Lijphart 2008.

25 effects in terms of unreasonable restrictions to the passive voting rights or by changing the political party result of the election (see the discussion of the various systems below).

Some experts advocate the use of the alternative vote (AV) in deeply divided societies (e.g. Horowitz). It is a preferential system that – they argue – tends to reward political moderation and compromise. The idea is that the single-member constituencies are drawn up in such a way that no group has majority (more than fifty percent) and an elected candidate would therefore need additional votes (second preference, third preference, etc.) from voters of communities other than his or her own to be elected. This, in particular, has been tried out in Fiji where one may claim that it has not worked as intended.34 It has been argued that the Fiji experience has shown to be unsuccessful and that elections in single-member constituencies will inevitably make minority representation more difficult.

See Chapter 7 for a more comprehensive discussion of the various systems.

2.4 Methods for Securing Group Representation

2.4.1 On the Purpose of Secured Group Representation There are a large number of methods securing group representation. To a large extent, the way each of them works is dependent on the overall system of representation, with some exceptions. The method is also often chosen to support a specific purpose of the quotas. One example is arrangements defined in power-sharing agreements where groups in conflict have a fixed share of representatives in decision-making bodies regardless of electoral result. Another example of a milder rule is the more general need for including groups that are otherwise underrepresented or not represented at all in political decision-making. The driving force is then a belief that a more inclusive body may be able to take better decisions; they can draw on a broader experience, in addition to simply being fair.

This study is motivated by the search for arrangements which may reduce conflict, but it is not obvious that it is the formal and rigid power-sharing agreements which have the most positive short and long term effects. We therefore need to study all the quota systems available to see how they work from a theoretical as well as empirical point of view.

The group representation arrangements that are independent of the system of representation are those that can be classified as separate elections for a group. Other methods will be described under the relevant systems of representation.

One important question regarding group representation is who is the electorate? Most gender rules are, for example, implemented in such a way that all voters vote for all candidates but the rules secure the gender balance. In other cases, the electorates are singled out, such as the Maoris in New Zealand, who have a separate voters register for voters electing a fixed number of members of parliament.

34 See e.g. Frankel 2001 for a thorough discussion.

If the purpose of the quotas is to accommodate a small ethnic group with very special interests compared to those of the population at large (e.g. in their use of natural resources), it may be important that the representatives are elected by the group itself. However, where fairly large groups have been at war, it may be sufficient to guarantee that a parliament has a certain balance between the groups. This is not a straightforward consideration. Neither in Bosnia and Herzegovina nor in Lebanon are there direct connections between the elected group representatives and the groups they represent. Bosniacs may elect the Croat member of the presidency and the Muslims may decide the Christian representative of a constituency of the parliament of Lebanon. This may still be the best long-term solution if the goal is to reduce segmentation and division.

If the groups in question are concentrated geographically, the most obvious solution to power- sharing arrangement is to draw electoral constituencies in such a way that the groups are guaranteed representation. This may be further underpinned by federal arrangements that guarantee the units a degree of autonomy and rights to language, religion, etc. Devolution of powers and federal systems as a means of power-sharing is, however, outside the scope of this report.

It should also be mentioned that some schools of thought would try to do exactly the opposite: draw constituencies in such a way that no group has a majority and that the elected member (from single-member constituencies) will need support beyond his or her own group. This may be done under AV or two-round systems.

The broad groups of methods for group representation are the following:

- Earmarked Seats - Requirements to candidate nominations - Requirements to the results (outcome) - Appointments (discussed here even if they do not involve elections)

Within each category, there are a number of variants. For some of the mechanisms, effects are closely linked to the system of representation with which they are combined.35

2.4.2 Earmarked Seats Earmarked seats are contested only by candidates of one group, so it is a separate race for that group. The term is used only for elected seats, even if there may be earmarked seats in appointments as well. Earmarked seats may be used in any system of representation.

There are two main types of earmarked seats: (i) Systems with a separate tier defined for the group (e.g. a Serb race for earmarked seats in Croatia) and (ii) systems with earmarked constituencies (e.g. for scheduled castes and tribes in India). In some cases, the voters are the general electorate and sometimes there is a separate electorate for that group only.

35 See also Reynolds 2005 for a brief, general overview of reserved seats in national legislatures.

If only those belonging to the groups may elect the group representatives, one needs to identify those voters, most often by a separate voters register. One fundamental requirement for a separate race is that nobody should be forced to vote according to ethnicity, religion, etc.36 If a voter register is used, it should be up to the individual to register there, and if there is not a register the voter should, if needed, choose in secret which race to participate in.37

Sometimes a separate race is organised within a body for indirect elections. An example is the election of the Croat and Bosniac members of the upper house (House of Peoples) in Bosnia and Herzegovina. These elections are held in separate caucuses of the House of Peoples of the entity known as the Federation Bosnia and Herzegovina.

Earmarked seats may lead to over-representation, both for direct and for indirect elections, since the system may allow a group to be represented both in a general race and in a race for earmarked seats. Such overrepresentation may be intentional or, at least, it must be tolerable.

Earmarked seats (separate race) without separate voters register

This can be done either by letting the voters decide in what race they want to participate, or by adding a race where everybody can vote but where all the candidates need to come from the group in question. The latter arrangement is often referred to as a second (or multi) tier election.

Voters choose the race. In this case, the candidates or candidate lists are marked with group belonging but all voters can choose any candidate or list of candidates in secret. For example, this is the case in Kosovo where there are lists for Serb parties and for other smaller minorities.38

Voters cast votes in multiple races. Here, all voters are invited to give a vote both in the general race and in the race for the seats reserved for the group representation. This is quite common for female representation (Egypt, Sudan, etc) but could also be used to promote other excluded groups.

Earmarked constituencies. Constituencies may be earmarked for particular groups. In India, more than 20 percent of the single-member constituencies (FPTP) are reserved for so-called

36 Some elections are held without voter registers and in such cases the voters would need some kind of identification to show the group belonging in polling station.

37 See The Council of Europe Framework Convention for the Protection of National Minorities, Article 3: «1. Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice.

2. Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others.»

38 In Kosovo, such lists participate both in the general race and in the separate race for reserved for the groups.

28 scheduled castes and tribes. Those constituencies to be earmarked have a concentration of the protected groups in their population. That means that all candidates in such constituencies must come from the reserved groups. Other people living in the constituencies can only run in another constituency. In a system with single-member constituencies, it is quite common to run outside where the candidate lives, but the earmarking does limit the right to stand for elections. In India, this limitation has been regarded as acceptable.

In Lebanon, all seats in the multi-member constituencies (in a block vote system) are earmarked by confession. The profile of the constituency is the basis but there will be a number of people who cannot run in their own constituency. With multi-member constituencies and all seats earmarked, a candidate without the right confession may have to run quite far from his or her own constituency. In addition, only Christians and Muslims are able to run and therefore some people (even though they are currently few) cannot run at all. This represents a rather serious limitation to the right to stand for elections. The Lebanese system is a combination of earmarked constituencies and best runner-up, since the constituencies are not earmarked for one single group only.

Another possibility is that the earmarking may rotate from one election to the next. This is done for women in local elections in India. In one election, all candidates of a constituency have to be women and then at the next election, that requirement is shifted to another constituency. In that way, the restriction on running is limited and temporary.

Earmarked Seats (Separate Race) with a Separate Voters Register

Under this arrangement, a separate voters register for the group is established. In some cases, like for the Maoris in New Zealand, those choosing to register in the separate register are removed from the general register. Each voter, therefore, has only one vote, either the general or the separate group one. In Croatia as well, voters from minority groups may choose to register as a minority voter and then participate in the minority race.

One could have arrangements where the group only had two ballots, one general and one for the group. This would affect the equality of the vote and may therefore be problematic.

2.4.3 Requirements to Candidate Nominations In plurality and majority systems, one may require parties to nominate a certain number of group candidates across the country.39 This was done for women in Nepal in 1999, but it did not translate into a corresponding number of women elected to parliament. It is easy for parties to undermine the purpose of such a requirement by putting up the group candidate in constituencies where they are sure not to win. Further, the requirement would only be applied to party candidates and not to independent candidates.

Within List PR systems, the simplest form of group representation is to define requirements to the candidate lists. One may either require a certain percentage of candidates to be of a

39 A special issue of the journal Party Politics (volume 7, issue 3, 2001) gives a general overview of methods for candidate selection and their consequences.

29 certain group or, in addition, they could include requirements for a prominent placement of the group candidates on the list. It has, for example, become common for parties in their by- laws to require women and men to alternate on the lists (the 'zipper rule') and in some countries, similar rules are enforced by law.

If the lists are closed (which means that they are published in advance and that the seats won by a party are filled from the top of the ranked lists), rules of the type described above will, to a large extent, guarantee group representation. With open lists, the voters may give votes to individual candidates on the lists and the voters’ choice determines which candidates will fill the seats. In such cases, the ranking on the list may change and the representation of specific groups is not guaranteed unless there are quota rules even for the results.

2.4.4 Requirements to the Results Obviously, the earmarked seats provide requirements to the results. Under this header, we will, however, consider systems where all or a number of groups may run for the elections, but the outcome of the election is “adjusted” ex post in such a way that it meets certain predefined requirements of group representation.

In block vote, STV or SNTV in multi-member constituencies, one may have a requirement where a certain number of those elected need to come from a particular group. If the requirement is not met automatically, the group candidate(s) with the highest number of votes replace(s) the general candidates elected with the lowest number of votes — this is known as the ’best runner-up system‘. The problem with this rule is that a group candidate of one party may replace the candidate of another party. The political party dimension is therefore affected. In Palestine in 1996 and 2006, Christians had quotas in the multi-member constituencies under a block vote system and, in both elections, Christians from one party replaced Muslims from another party because of the quota system.

In Jordan, there is a women’s quota applied to the whole membership of the parliament, but not to each multi-member constituency.40 If there are not a sufficient number of women elected, the runner-up(s) with the highest number of votes replace the weakest elected candidate of the same constituency. The political distribution is affected in this case as well. In addition, the choice of which constituency is subject to the quota is quite random. The one with the highest number of votes is not necessarily the strongest candidate, since the size of the constituencies varies.

In single-member constituencies, the best runner-up is a less obvious solution, but it could be done in a way similar to the Jordanian example, with the same negative effects in the political composition, which, in this case, would always change.

In List PR systems, requirements for the result may be applied within lists or across lists. Requirements within lists means that a certain share of the candidates elected from a party need to come from a certain group. If the requirements are not met by filling the seats from

40 The system of representation is SNTV, but the quotas may work in the same way under the block vote system.

30 the top of the list (as defined by the party or by the voters if the list is open), one may search down the list for the best runner-up of the needed category.

Requirements across lists are more complicated to implement (for the election management body, not the voters), but they may be used where one needs to guarantee a certain representation. If, for example, there are many small parties winning seats, the quotas may not be filled when adding up the results for all parties.41 The rules are most easily implemented by the use of division methods for distributing seats (such as d’Hondt or Sainte- Laguë) where the seats are issued to parties one by one. If there is a minimum quota for a group of 30 percent, there cannot be more than 70 percent of seats filled by members not belonging to that group. When the number 70 percent is reached during the distribution, all non-group members on all lists are simply deleted and the rest of the seats are given to members of the protected group. Requirements for the composition of the lists would ensure that all party lists include such candidates and the balance between the parties is therefore not affected.

Closed lists

With closed lists, requirements for filling seats applied to the lists only will not add to the representation.42 The exception to that is the system used in Nepal where the lists are not predefined in a ranked order. The parties may fill the seats by anyone on the lists after the elections, as long as they observe the quota rules.43

The requirements across lists may add to the group representation by guaranteeing a minimum representation, regardless of the size of parties winning seats.

Open lists

With open lists, the voters may change the order on the list and thus alter the group representation. This may be “repaired” or “corrected” by applying the quotas to the result. This will limit the voters’ choice in their open list vote, but every quota rule has that effect. The voters will still decide on the candidates to be elected within the boundaries defined by the quotas.

Requirements across lists would serve the same purpose as for closed lists.

2.4.5 Appointments In some countries, group representation is secured by indirect elections or appointments. For the principal chamber of parliament, it is a generally understood principle that all members

41 If one out of four needs to be a minority representative and many parties win from one to three seats, there is a chance that the group never wins a seat.

42 Rules for filling seats could, however, replace the rules for prominent placement of group candidates on the list, but that would be less transparent and less predictable for the voters.

43 This is not a system recommended by international bodies since the transparency and predictability is low.

31 should be directly elected.44 In some countries (for example Pakistan), minority representatives are distributed to parties according to their share in the parliament and are selected from predefined lists. In a way, they are therefore elected but the Hindu or Christian representatives are chosen based upon votes for the majority parties in single-member constituencies and the distance from the voter to those elected is therefore long.

In other countries, the government or the president appoints a number of representatives that may be used to compliment the group representation. In these arrangements, one disadvantage is the distance from those appointed and the people they are supposed to represent and the lack of accountability. We will not discuss such arrangement any further except for listing the countries that apply such arrangements.

2.4.6 A Summary Table We summarise the discussion above with a table. The various types of requirements and the main types of electoral systems (systems of representation) result in forty combinations or cells. We illustrate by mentioning one or two countries that currently use a particular combination. Empty cells mean that a combination as far as we know is not in use today, but there could nevertheless be historical examples.

44 This is explicitly stated in the CSCE Copenhagen document of 1991, but it also follows from a reasonable interpretation of the International Covenant on Civil and Political Rights.

Table 2.1: Electoral systems and types of requirements to secure group representation.

System of Earmarked Seats Nomination requirements Results representation (Separate race) requirements, (electoral best runner-ups systems) Without With In percent Placement separate separate voters voters register register

Single-member India Fiji, New Not efficient, This is handled constituencies Zealand women in under with Nepal before earmarked plurality/majorit 2008 seats y

Block vote Lebanon, in Possible but Possible but The Palestinian combination not efficient not efficient Territory with best runner-up

Party block vote Singapore

List PR closed Kosovo Croatia Does not Bolivia, Municipal guarantee women election in the representatio Palestinian n Territory, Nepal

List PR Open Does not Women in guarantee Bosnia and representatio Herzegovina n

STV

Mixed systems The The Palestinian Nepal (MMP and Palestinian Territory, Parallel) Territory, women women

SNTV Jordan

2.4.7 A theoretical Assessment of the Methods When assessing the methods, one should look into how they actually work, including whether they have unwanted side effects. In this section, we restrict ourselves to a brief overview of possible effects and other evaluative considerations.

The possible side effects could be:

 The quotas may change the composition of the parliament in terms of party representation. If, for example, in the best runner-up system under the block vote, a candidate from a protected group of one party replaces a candidate of another party, the political distribution is affected. In the long-term in particular, the political dimension should be the most important one to consider.  The equality of the vote could be undermined, and weaken the democratic quality of the system.  Limitations to the right to vote.  Unreasonable limitations to the right to stand for elections.  Complexity.  The long term incentives for reconciliation and equality.

The following systems seem to be the most effective:

Earmarked Seats

 Efficiency in representation: The representation will be as intended. Representation may be in addition to representation coming out of the regular race.  The party-wise representation: This may be less affected, at least if the system of representation is the same for all seats.  Equality of the vote: If the group voters have votes in a general race in addition to in the separate one, the inequality may be strong. This may be an intended effect for a vulnerable group.  Limitations to the right to vote: Normally not affected.  Limitation to standing for elections: If there are earmarked constituencies where the candidacy is restricted and the electorate a general one, there will be a limitation to standing for elections. Normally, the restrictions will be applied only locally and candidates will be able to run in another constituency.  Long-term effects: Since the earmarked seats are separated out, inequalities are underlined.

Requirements to nominations in List PR

 Efficiency in representation: If there is a requirement to the placement on the lists, the system is efficient. Even if an open list system may reduce the effect, the system still works quite well.  The party-wise representation: No effects.  Equality of the vote: All voters are treated the same way.  Limitations to the right to vote: Normally not.  Limitation to standing for elections: Some candidates will have a lower chance of being nominated, and that is an intended and legitimate effect of the system.

 Long-term effects: This is a system which is fully integrated into the general system of representation and may affect the segmentation of the electorate less compared to other systems.

Requirements to the results in List PR

 Efficiency in representation: The system is efficient.  The party-wise representation: No effects, unless a party list is exhausted of candidates of the required flavour. The party may prevent this from happening by securing a broad range of candidates.  Equality of the vote: All voters are treated the same way.  Limitations to the right to vote: Normally not.  Limitation to stand for elections: Some candidates will have a lower chance of being nominated, and they may be by-passed when filling seats won. That is an intended and legitimate effect of the system.  Long-term effects: This is a system which is fully integrated into the general system of representation and may affect the segmentation of the electorate less compared to other systems.

Best runner-up systems in a plurality of majority-based systems may change the party political composition of the parliament and should be avoided.

2.5 Power-Sharing – Decision-Making Procedures Elements of power-sharing agreements will limit majority rule and give the parties to the arrangement powers in terms of guaranteed representation and decision-making rules (presumably) favourable to their interests. In the sections above, the main focus has been on representation. We will now look into some of the formal rules for decision-making, which may be elements of a power-sharing arrangement. For example, most countries have conservative rules for changes to the constitution or for the impeachment of a president. These are not covered here. The rules we deal with are those that can be seen as unusual or atypical for the type of decision-making in question, and that are motivated out of power- sharing considerations.

Decision-making rules based on broad consensus have to be balanced against the needs for efficiency. In all the countries of the in-depth studies, this balance is important. In Part IV, we will draw some conclusions based upon the experience of different models.

2.5.1 Qualified Majorities Most decisions in representative bodies are made by a majority of those present and voting; simple majorities decide. Absolute majority is a slightly more demanding requirement, as at least a majority of the members (not just those present) of an assembly need to agree. Qualified majority rule means that more than half of those present or of all members has to agree to make a decision. The most common types of qualified majority rules are three-fifths, two-thirds and four-fifths, but any rule between simple or absolute majority and unanimity

35 belong to this class.45 Unanimity rule grants veto power to each and every participant. It is common to require a qualified majority to change a constitution and in other situations where the status quo is a viable alternative. When voting on regular legislation and budgets, the common practice is to require only a simple majority for a valid decision. A higher threshold may easily lead to stalemates where the body is unable to make a decision, even in such cases where everybody agrees that a decision is necessary.

Requiring a qualified majority even in ordinary decisions typically has the need for consensus as background. In a deeply divided society, the ideal may be that decisions should be compromises where none of the groups feel left out or overrun by the majority. In Bosnia and Herzegovina, Lebanon and Nepal, which are the cases we analyse, there are strong elements of consensus philosophy behind the peace agreements.

In Burundi, all laws need a two-thirds majority to pass in parliament. Each of the groups in conflict has at least forty percent of the representatives of the parliament so that such a requirement would prevent the largest group to force through a decision without at least some support of the other group.

2.5.2 Double Majorities Repeated majority decisions by the same body and various forms of double majority requirements have the same stabilizing effects as qualified majority rule. The decision-making system turns more rigid and deadlocks become more likely.46 In Bosnia and Herzegovina, certain decisions can only be made by a double majority. In addition to the majority of all representatives of a house of parliament, there needs to be a majority within the caucus of each of the two entities as well.

2.5.3 Veto Powers Another way of protecting a minority from arbitrary decisions by the majority is to give the minority veto powers within certain areas. In Bosnia and Herzegovina, one of the three caucuses (Croats, Bosniacs and Serbs) in the parliament may apply a so-called vital national clause if they feel that their fundamental rights are threatened and veto the decision. It is also common that changes to a constitution may require consent by various groups and thus offer a veto against change to defined groups.

2.5.4 The Balancing of State Bodies In many countries, the composition of the two houses of a bicameral parliament may have a composition reflecting different principles. The upper house may represent groups of people (or units of a federation) rather that individual voters and some decisions may have to pass votes in a chamber where a minority is stronger than in the principal chamber.47

45 See Rasch 1995 and McGann 2006. Rasch also deals with quorum requirements and mechanisms to resolve ties.

46 Tsebelis 2002 and McGann 2006.

47 Tsebelis and Money 1997 give an overview of institutional features in bicameral systems.

Other mechanisms, such as the relationship between the executive and the parliament, the powers of the judiciary, etc. also have implications on the power-sharing between groups, but these are elements which will not have the main focus in this study.

3: Broad Overview of Systems 3.1 The Americas

3.1.1 Introduction Bolivia, Columbia and Venezuela all have quotas for small indigenous and some other groups. The indigenous groups live in a traditional manner in the Amazonas region and should not be confused with Mestizo or other mixed or urbanised groups. The countries have a colonial history, have mixed populations (indigenous groups and European and African heritage) and have had conflicts related to the control of land and natural resources like water, forestry, and oil.

Belize is not included here, since their social representation is based on appointments only.48

Table of systems The Americas Country and name of Electoral System Basis of Quota Type of quota Democracy Index assembly Chamber of deputies BOLIVIA (Cámara de Diputados) Ethnicity Earmarked seats

Plurinational Legislative Parallel Partly free Assembly (List PR+FPTP) Gender Quota on lists (Asamblea Legislativa Plurinacional) Senate (Cámara de No quota No quota Senadores)

House of representatives Ethnicity Earmarked constituencies, COLOMBIA (Cámara de and ‘small parties’ earmarked seats Representantes): FPTP Partly free Congress (Congreso) Senate (Senado de la Earmarked constituency, Ethnicity República): List PR earmarked seats

National Assembly VENEZUELA Earmarked constituency, (Asamblea Nacional): Ethnicity Partly free earmarked seats Parallel

48 Half of the senators of Belize are appointed on advice from the prime minister, while three are appointed in accordance with advice of the leader of the opposition, one in accordance with advice from the Council of Churches and Evangelical Association of Churches, one from Commerce and Industry and the Business Bureau, and one in accordance with the National Trade Union Congress (Belize Constitution Act Chapter 4, Revised Edition 2002, Article 61.4).

3.1.2 Bolivia The current government party, MAS (Movimiento al Socialismo) was established in 2001 as an alliance of social movements, representing indigenous groups, small farmers, organized labour and parts of the Bolivian middle class. MAS forms a reaction to social and economic cleavages that date back to the colonization by Spain in the 16th century and the prevailing dominance of the Spanish elite over political powers, land and natural resources. In 1952, a Mestizo-led revolution resulted in general voting rights, land reform and the nationalization of tin mines. The (MNR) Revolutionary Nationalist Movement government was deposed in 1964, and until 1982, Bolivia was under military rule. Comprehensive liberal market reforms in the 1980s and 1990s culminated in strong protests, strikes, marches, demonstrations and the loss of faith in traditional political parties. Against this backdrop, the MAS won elections in 2005 on a platform of socialism, nationalization and land reform. Perhaps the most important electoral promise was that of a new constitution to ‘re-establish’ the Bolivian state on a multicultural and multiethnic basis. The new constitution was passed in 2004 in spite of bitter, and at times violent, protests from the opposition due to disagreements over the distribution of income from the oil and gas sector, as well as the issue of regional autonomy.

Bolivia defines itself as a unitary social state based on ‘Pluri-National Communitarian Law’ (Constitution49, Article 1). Article 3 states that the Bolivian nation is formed by all Bolivians, the native indigenous nations and peoples, and the inter-cultural and Afro-Bolivian communities that, together, constitute the Bolivian people. Nations and indigenous peoples are defined as “every human collective that shares a cultural identity, language, historic tradition, institutions, territory and world view, whose existence predates the Spanish colonial invasion” (Constitution, Article 30).

The parliament has two chambers: The Chamber of Deputies and the Senate. The Chamber of Deputies consists of 130 members elected in a Parallel system. 77 are elected from single- member constituencies and the other 53 are elected in a List PR system in multi-member constituencies, which constitute the nine ‘departments’50. Among the 77 single-member constituencies, there are seven reserved for indigenous peoples and they are apportioned to non-contiguous, rural areas (Constitution, Article 146-147) based upon population data.

Article 147 of the Constitution also has two other requirements:

I. The equal participation of men and women shall be guaranteed in the election of the members of the assembly.

II. Proportional participation of the nations and rural native indigenous peoples shall be guaranteed in the election of members of the assembly.

In order to meet criterion I above, the election law Article 9 prescribes that male and female candidates need to be 'zipped' on the list in the PR race (which means that there will be close to half of each gender on the lists) and the parties need to suggest a man and a woman as candidate and substitute in each of the single-member constituencies. These two rules will

49 As updated per May 2009. 50 The transitional election law of 14 April 2009.

39 not guarantee that half of the members of chamber are women, since parties winning an odd number of seats may return one more men than women and all the candidates elected from the single-members constituencies may be men. However, the requirements for gender balance are quite far reaching.

The second requirements (II) of proportional participation of the nations and rural native indigenous peoples do not seem to be regulated further by law. There is no specific rule for the composition of the candidate lists in the multi-member constituencies. The only guarantee is the one coming from the seven reserved single-member constituencies.

According to Article 148 of the Constitution, the Senate consists of 36 members with four elected from each of the nine departments. The election is direct and by List PR.

3.1.3 Colombia Close to 60 percent of the Colombian population is of mixed European-Native American descent as a result of the Spanish colonization of the country. Colombia is a unitary republic with a presidential system. The legislature is bicameral. The House of Representatives consists of 166 directly elected members, out of which 161 are elected from 33 multi-member constituencies corresponding to the departments and district of Bogotá51 with at least two seats in each. The electoral system is List PR with closed lists.

Article 176 of the constitution provides ethnic minority representation in the House of Representatives. According to the law,52 five special representatives are elected in nationwide constituencies, two for the black community and one for each of the groups: indigenous people, political minorities and Colombians abroad. The term political minorities refers to such parties which have tried to stand for elections nationwide but not won any seats53, and the electoral system is FPTP.

Everybody is entitled to vote for the indigenous and black candidates.54 According to Duarte, only 0.51 percent of those eligible to vote in the black constituency participated in 2006 (51,443 out of 26,593,271 voters).

The Senate consists of 83 directly elected members, also elected by List PR with closed lists. In addition to the 83, two seats are earmarked for indigenous communities from one nationwide constituency (Constitution, Article 171.2), and three in an earmarked constituency for political minorities (Constitution, Article 171.2). Indigenous candidates must have been a traditional leader figure in their communities or have been leaders of an indigenous organization.

51 The Constitution as last updated November 2008. 52 Law 649 of 27 March 2001. 53 Article 40 of the Law 649 requires those competing for these seats to have nominated candidates in at least 30 percent of the constituencies, not won any seats and not have more than 70 percent of their votes cast in one constituency. 54 This is not obvious from the primary sources available but Duarte 2007, for example, gives a good indication.

In addition to the indigenous quota, Article 112 of the Election Law requires that candidate lists to the Lower House (Cámara de Diputados) must include at least one woman out of every three candidates in the PR part of the election.

3.1.4 Venezuela Venezuela’s population is mixed, with Spanish, Italian and Portuguese as the main European groups, and indigenous peoples. The Venezuelan republic is unitary with a presidential political system. The legislature is unicameral and has 165 members. Out of these, 110 are elected by FPTP from 87 constituencies, 52 elected on a party list system (two or three deputies per state of Venezuela, depending on population), and 3 seats were reserved for indigenous peoples, with separate rules (Constitution, Article 186). The system is a Parallel system.

According to the Election Law of 12 August 2009 Chapter XV, the three seats reserved for the indigenous are elected from geographical constituencies, one from the west, one from the east and one from the south of the country. Such a constituency may not constitute a continuous geographical area (Article 179.) The candidate is elected who receives a majority of the valid votes in his region.

All native organizations or communities have the right to nominate native candidates who speak their native language, and who have an established social or political position within the community. The nominating organizations must be legally constituted and must have been in existence for at least three years.

Candidates eligible for election must fulfil one of the following requirements: 1. Been a traditional leader, 2. Had a track record of fighting for cultural indigenous identity, 3. Played an active role in providing benefits for indigenous people, 4. Be a member of a legal indigenous organisation that has been operating for at least three years.

The Article 178 prescribes that those eligible to vote for the ethnic group race have to be registered in a separate voters register.

3.1.5 Main Findings Ethnic quotas are found in Colombia, Bolivia and Venezuela in the form of earmarked seats for indigenous and other small groups. The violent conflicts in the countries have a political and ideological background. The conditions for indigenous groups have not been unrelated to conflicts but the quotas as such cannot be seen as measures to establish power-sharing between conflicting groups.

3.2 Asia-Pacific

3.2.1 Introduction In this area, there are conflicts related to religious identity (Moslem versus Christian, Hindu versus Moslem and Christian), ethnicity and social and economic differences. In some countries, far left parties with a strong ideological conviction often with broad mass bases have emerged. Armed conflicts have prevailed.

Nepal is the only country in our selection without a colonial past.

Our selection only includes countries with electoral quotas. That is why Sri Lanka, which has been through a civil war based on an ethnic conflict, has not been included. Sri Lanka is a country where devolution of powers combined with quotas could be a response to the conflict. Prolonged attempts to find a power-sharing arrangement have, however, failed. Kiribati is not included since their group representation is based upon appointment only.55

Table of systems Asia-Pacific Democracy Electoral System Basis of Quota Type of quota Index House of Representatives Earmarked seats Social Group (Wolesi Jirga) Reserved constituency for AFGHANISTAN SNTV nomads

Not free National Assembly House of Elders (Jirga) (Meshrano Jirga) Indirect TRS + No quota presidential appointment House of Separate race FIJI Representatives and voters registers FPTP Ethnicity Partly free Parliament and multiethnic delimitation

AV and FPTP in AV constituencies

Earmarked constituencies House of the People Social group and for scheduled castes and (Lok Sabha) ethnicity tribes

FPTP + Executive INDIA Earmarked seats, executive Appointment Ethnicity Free appointment Parliament (Sansad) Council of States (Rajya Sabha) Experts and Earmarked seats, executive

particular skills appointment Indirect, STV + Executive Appointment Social group, Constituent Assembly ethnicity and Requirements to lists (Sambidhan Sabha) Nomination percentage NEPAL linguistic groups Selection from party lists Partly free Parliament (Sansad) Parallel (FPTP and List Gender composed after elections to PR) plus appointments fill quotas

55 One seat is reserved from a representative of the Banaban community, who inhabit the Rabi Island which in turn belong to Fiji. This member is appointed by the Rabi Council (Constitution, Article 117), the municipal body that administers the Rabi Island. It may be classified as indirect election but it is not significant in our context.

House of NEW Separate race Representatives Free ZEALAND Ethnicity earmarked constituencies

MMP

List PR in one nationwide constituency from separate, Religion closed party lists, based on National Assembly: the distribution of seats in Direct FPTP election + parliament indirect List PR representation List PR in reserved PAKISTAN constituencies from Parliament (Majlis-E- Gender separate, closed party lists Partly free Shoora) based on the distribution of seats in parliament

Gender Reserved seats Senate: STV Indirect Social Groups Reserved seats

House of Representatives Small parties with (Kapulungan Ng purpose to Reserved constituency with Kinatawan): accommodate social List PR PHILIPPINES Parallel (Mostly FPTP groups Congress but List PR for small Partly free (Kongreso) parties)

Senate No quota (Senado): Block vote

Legislative Assembly Earmarked constituency, SAMOA (Fono): Parallel Free Ethnicity separate race (FPTP+BV)

Parliament Reserved constituencies Parallel (FPTP+PBV) SINGAPORE Ethnicity with list requirements and Partly free + Party block vote appointments

3.2.2 Fiji Fiji is a unitary republic with a parliamentary political system. The parliament has two chambers, the House of Representatives and the Senate, with 71 and 32 members respectively. The Senate consists of 32 members, of whom 14 are appointed by the President on the advice of the Great Council of Chiefs (Bose Levu Vakaturaga)56, nine are to be appointed by the President on the advice of the Prime Minister, eight are appointed by the

56 The Council has, however, been suspended after a conflict with Frank Bainaimarama, leader of the interim government, which came to power after a military coup in December 2006.

President on the advice of the Leader of the Opposition, and one is appointed by the President on the advice of the Council of Rotuma (Constitution, Article 64). The Senate has a delay veto, except for money bills (Constitution, Article 47-48).

From 1874 until 1970, Fiji was a colony under British rule. Under the rule of the British governor, Indian labourers were imported to work on the European sugar estates. Interaction between these and the indigenous Fijian population was limited until independence was achieved. Over time, the Indian population has come to dominate the economic sphere, whereas the indigenous Fijians have maintained political dominance. Elections were fought largely along communal lines until the emergence of the Fiji Labour Party in 1985. The 1987 elections brought a coalition of the Labour party and the Indo-Fijian National Federation Party to power, followed by a military intervention to restore indigenous political hegemony only two years later57. Since then, Fijian politics has been marked by instability caused by friction between the two dominant groups.

An escalating conflict between the groups was tried solved in the 1990s by the adoption of a new constitution in 1997, changing the electoral system of Fiji from FPTP into the Alternative Vote. Several electoral rolls were introduced: one Fijian, one Indian, one for the smaller Rotuman group, one general, and one common for all groups. Electors registered in the two first rolls choose 23 and 19 representatives respectively to a parliament consisting of 71 members. The two following groups elect a total of four, while all electors registered in the common roll elect 25 representatives. The ethnically-based elections are done by FPTP, whereas the common election is held by AV in single-member constituencies.

The system was intended to reduce the polarization between Fijians and Indians by promoting majority victors and encourage interethnic accommodation through the common roll.58 The idea was to draw up constituencies where none of the groups had majority and therefore candidates would have to rely on secondary support from ethnic groups other than their own. This system should therefore encourage moderate candidates within the groups.

Results from elections held in 1999, 2000 and 2006, however, indicated that “the majority of transfers of preference votes in Fiji flowed from the more moderate or centrist parties towards the more extremist organisations”.59 Since then, the country has seen two military coups (2000 and 2006), and there is a widespread concern that the system has not worked as intended. The conflict still runs deep. New elections are scheduled for 2011. Electoral reform has been on the political agenda for years, but the debate has remained inconclusive. One main criticism of the AV constituencies has been that they are artificial. They have been drawn up to produce a particular result and have therefore been seen by many as ‘electoral engineering’.

57 Lal 1997 and Ramesha 2010. 58 Reeves, Vakatora & Lal, 1996 as quoted in Horowitz 2006: 653, and Reilly as quoted in Ramesha 2010: 493 59 Fraenkel, as quoted in Ramesha 2010: 493.

3.2.3 India India is a federal republic consisting of 28 states, the National Capital Territory of Delhi and 6 centrally administered Union Territories. The federal system has defused some of India’s tensions, exempting the thorny issue of Kashmir. In spite of a constitutional ban, there is also widespread discrimination against the Dalits or outcastes by India’s higher castes. A growing Maoist movement appealing to the Dalits and the landless, and communist guerrillas were active, as of 2010, in more than one-third of India’s districts. Christians and Muslims have been subject to attacks by Hindu groups in areas like Gujarat and Orissa. Similarly, Hindus have been attacked in Jammu and Kashmir, where they themselves constitute the minority.

The political system is parliamentary. The President appoints the Prime Minister who needs to enjoy the confidence of the House of People (Constitution, Article 75), Ministers are appointed by the president on advice of the prime minister, and do not require parliamentary approval (Constitution, Article 75). The President is elected by the legislature (Constitution, Article 54).

The legislature consists of a lower chamber, the House of the People (Lok Sabha), and an upper chamber, the Council of States (Rajya Sabha). Laws must be passed in both chambers (Constitution, Article 108). The exception is money bills, which are not presented to the Council of States. When a bill has been passed by both Houses, it is presented to the President, who may either assent or request the Houses to reconsider the bill with proposed amendments. If the bill is passed again, with or without amendments, the president cannot withhold his assent (Constitution, Article 111). Laws can be subject to constitutional review by the Supreme Court (Constitution, Article 132).

The House of the People consists of no more than 530 members elected directly from the constituencies and not more than 20 members elected to represent the Union territories (Constitution, Article 81.1). These are elected by plurality vote in single-member constituencies, FPTP. The Council of States consists of no more than 238 representatives from the states. Representatives are elected “by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote”. (Article 80, 4)

There are 84 reserved seats in the Lok Sabha for so-called Scheduled Castes and 46 seats for Scheduled Tribes.60 Scheduled castes constitute approximately 16 percent of the Indian population, whereas scheduled tribes constitute 8 percent. Relative to the remaining population, these groups remain socially and economically disadvantaged.61 In order to improve the standing of scheduled castes and tribes, the 1950 Constitution sets down a system for ensuring representation for these groups in the national and state assemblies. According to Article 332 of the Constitution, the reserved seats are filled from reserved constituencies where only candidates from these communities can stand for elections. However, the entire electorate may vote for any qualified candidate.

60 Increased from 79 and 41 respectively in March 2009, see Election Commission of India, No. ECI/PN/47/2009, Press Note, 31. August 2009. 61 Pande 2003: 1138.

Caste definitions are based on the 1931 census, whereas tribal identification criteria were decided by Parliament in 1950. The state-wise break-up is given in the 1st schedule to the Representation of the People Act, 1950. The scheduled caste and scheduled tribe lists have been twice revised since then. It falls to the Delimitation Commission to ensure that the selected districts are the ones with a higher population share of the group in whose favour reservation is being practiced, while ensuring a sufficient dispersal of reserved jurisdictions within the state.62

In addition, the president may nominate two members to the House of the People to represent the Anglo-Indian community, “if he is of opinion that the Anglo-Indian community is not adequately represented” (Constitution, Article 331). Furthermore, the president appoints twelve members to the Council of States. These members are “persons having special knowledge or practical experience in [...] Literature, science, art and social service” (Constitution, Article 80 (3)).

As of May 2011, there is no women’s quota for the Parliament. An attempt was made to pass legislation to reserve one third of the seats for female candidates, but the process was interrupted by the dissolution of Lok Sabha before the 1998 elections. However, on March 9th 2010, the Constitution (108th Amendment) Bill that grants 33 percent reservation to women was passed by the Rajya Sabha. At the time of writing, the legislation is to be introduced to the Lok Sabha, where it will need a two-thirds majority to pass.

3.2.4 Nepal Nepal’s current legislature is the Constituent Assembly that was elected in April 2008. Pending a new constitution due in 2011, the Assembly draws its powers from the Interim Constitution of January 2007. The following is based on the Interim Constitution as amended by May 2010.

The Interim Constitution stated that the Constituent Assembly should implement the transition from a monarchy to a republic at its first meeting (art. 159 (2)), which was held in May 2008. Nepal is still a unitary republic with a unicameral parliament, but the transitional article 159 of the interim constitution pre-empts the future constitution by stating that, “Nepal shall be a federal democratic republican state.”

The constituent assembly is tasked with drafting a new constitution. Article Laws are passed by a simple majority of the total number of members of the House (Interim Constitution, Article 85). A bill becomes an Act after being certified by the Speaker (Interim Constitution, Article 87).

The Constituent Assembly consists of 601 members. Of these, 240 members were elected by FPTP from single-member constituencies, and 335 were elected by List PR with closed lists63 from one nationwide constituency. 26 distinguished persons and persons from ethnic groups

62 Ibid, p. 1139. 63 The term 'closed lists’ means that voters could not influence the election, but the lists were not ranked and it was up to the party executives to select which candidates should fill the seats won after the elections.

46 who fail to be represented through the regular election process (Interim Constitution of 28 December 2007, Article 63) were to be appointed by the government. Elections were held in two parallel races that were disconnected in terms of distribution of seats under the List PR race.

The election law required parties to keep ‘in mind’ the principle of inclusiveness in nominating candidates for the FPTP elections. In composing the lists for the List PR race, parties were required to “ensure the proportional representation of women, Dalits, oppressed communities/indigenous groups, backward regions, Madhesis and other groups” (Article 7, 3). Schedule 1 of the Election Law broke this down into specific percentages for Madhesi, Dalit, Janajatis, backward regions and ‘others’. The distribution between the genders was also specified in that a minimum of one-third of each party’s candidates for both races had to be women.

In the List PR race, the party leaders filled the seats won by the party after the elections from lists defined and published before the election. The party leaders did not have to follow a ranked sequence of the lists in doing so, but they had to meet the same quota rules as for the candidate lists. As one of three selected case studies, Nepal is described in more detail in Chapter 5.

3.2.5 New Zealand New Zealand is a constitutional monarchy with a parliamentary political system. The legislative body is unicameral and has 120 members directly elected by the Mixed Member Proportional system. Each voter can vote for two candidates; one from single-member constituency lists, and one from nationwide party lists. The number of constituencies is from time to time adjusted based on census data (Electoral Art, 35). In the 2008 elections, 63 members were elected by FPTP in general electoral districts and 50 members by List PR from nation-wide party lists. List seats are distributed to parties winning more than the five percent threshold. If parties win more electorate seats than their share of seats determined by the party vote, then they can keep the extra seats, called ‘overhang seats’ (Election Law, Article 192).

There are a number of Maori electoral districts to be set from time to time (Electoral Law, Article 45). These are filled by FPTP in a separate race. Maori voters may choose whether they want to be registered either as an elector of a Maori electoral district or as an elector of a General electoral district (Electoral Law, Article 76-79). As of December 2010, there were seven members elected from Maori constituencies. Maoris may also run in general constituencies and on party lists in the List PR race.

3.2.6 Pakistan Pakistan is a federation consisting of four provinces (Baluchistan, Khyber Pakhtunkhwa, Punjab, and Sindh), a federal capital district and two federally administered areas (the Northern Area and Tribal Areas). Formally, the political system of Pakistan has been parliamentary. In 1999, when General Pervez Musharraf took over the country in a bloodless coup, he declared himself president and suspended parliament and the constitution. In 2002, the constitution was restored but at the same time a Legal Framework Order with later

47 amendments was issued by a Chief Executive Order in 2002 and the Constitution was amended so as to provide for a stronger presidential system (Seventeenth Amendment of 2003). Elections held in the same year resulted in a hybrid military-civilian order, in which Musharraf simultaneously served as President and Chief of Army Staff. The Seventeenth Amendment to the Constitution therefore enabled the President to dismiss the National Assembly.

In 2010, the Eighteenth Constitutional Amendment repealed the Seventeenth Amendment and the Legal Framework Order and returned powers to the Prime Minister.

The president appoints the prime minister, but the candidate must have support in parliament (Constitution, Article 91). Individual ministers are not approved by parliament (Constitution, Article 91). The president is elected by an electoral college constituted by the legislature and provincial assemblies (Constitution, Article 41).

The Parliament is bicameral, consisting of the National Assembly and the Senate. Bills may originate in either House and must be passed by both houses without amendment. If a bill is rejected or is not passed within 90 days of receipt, the House of origin requests that the bill be referred to a mediation committee for redrafting (Constitution, Article 71). Money bills shall, however, originate in the National Assembly. The Senate may make recommendations, which the National Assembly may or may not incorporate upon presentation to the president for assent (Constitution, Article 73). The president may request amendments, which the parliament may or may not incorporate. A presidential veto can be overridden by a majority in both houses (Constitution, Article 75).

There are 342 representatives in the National Assembly. Of these, 272 are so-called ‘general seats’ filled with representatives elected by FPTP in single-member constituencies. The 70 remaining seats are reserved for non-Moslems and women (Constitution, Article 51), which are allocated based upon the distribution of seats among the parties after the general FPTP part of the election (see below). Members of the upper house are indirectly elected by federal assemblies and from the federally administered territories “in such a manner as the President may, by Order, prescribe” (Constitution, Article 59).

There are ten seats reserved for non-Muslims and sixty for women in the National Assembly. There is no separate vote to fill these seats but the allocation is to party lists in accordance with their strength in parliament after the FPTP election. The ten non-Muslims are elected from lists regarding the country as one constituency according to List PR (Constitution Article 51.e). Women are elected from lists defined in separate constituencies in each region: “...each Province shall be a single constituency for all seats reserved for women who are allocated to the respective Provinces ...” (Constitution, Article 51.b). Women and non- Muslims may also run for general seats on the basis of party nomination.64 The distribution of reserved seats is based “on the total number of general seats won by each political party in the National Assembly”. Candidates are elected from lists of candidates in prioritized order

64 Mudassir Rivzi, "Women win record seats, but not activists' hearts, "Inter Press Service, http://ipsnews.net/interna.asp?idnews=12918 .

48 presented by the political parties prior to the elections (Conduct of General Elections Order, 2002, Chief Executive's Order No.7 of 2002, 4.e., f.; 8F1). Consequently, the distance between the voters and the elected representative provides for weak accountability.

Only parties achieving at least 5 percent of the general seats may benefit from the reserved seats (The Conduct of General Elections Order, 2002, Chief Executive's Order No.7 of 2002, 4.g) and no independents can run for such seats.

The Senate consists of 100 members. Of these, fourteen are directly elected from each provincial assembly. Eight are directly elected from the Federally Administered Tribal areas. In addition, four women and four technocrats and clerics are elected by each of the Provincial assemblies respectively (Conduct of General Elections Order, 2002, Article 8b.1). Seats are allocated by the single transferable vote (Conduct of General Elections Order, 2002, Article 8b.2)

3.2.7 Samoa Samoa is a unitary republic with a parliamentary political system. The legislative assembly is unicameral. On advice from the prime minister, the head of state may refuse to give his ascent to a draft bill, in which it will not become law (Constitution, Article 60). The assembly consists of 49 members.

35 members are elected by FPTP in single-member constituencies, whereas 14 are elected by block vote in two-member constituencies.

47 seats are reserved for ethnic Samoans elected from so-called Territorial Constituencies. Two are elected from the Individual Voter’s Roll, which is open to citizens of foreign and mixed descent. The Individual Voters roll was formerly reserved for Europeans, but now includes all citizens of foreign and mixed descent, as well as their spouses.

The right to stand for election is restricted in both the constituencies and the Individual Voters Roll. Only traditional heads of families (holders of so-called matai titles) can stand for elections in the territorial constituencies65. Only those registered in the Individual Voters roll are eligible as candidates to represent individual voters (Electoral Act, Article 5).

3.2.8 Philippines The Congress (‘Kongreso’) of the Philippines was established in 1946 upon independence from the United States. In 1972, President Ferdinand Marcos suspended parliament and declared martial law. A new constitution in the following year formalized Marcos’s absolute authority. Marcos relinquished power in 1986 amid demonstrations sparked by allegations of massive fraud in a presidential election. He subsequently fled the country, and in 1987, the Philippines adopted its current constitution.

65 A matai title can only be bestowed on someone chosen by the family as their matai. The 2006 official census of Samoa identified a total of 15,783 matai (8.7 percent) living in the country from a total population of 180,741. Of the total number of matai, 12,589 (79.8 percent) were male and 3,194 (20.2 percent) were female.

There are two major conflicts in the Philippines: that of the communist guerrillas against the government, and that of Muslim separatism in Mindanao. From 1993 to 1990, the Philippine government encouraged a large number of Christians to settle in Mindanao. The proportion of Muslims in Mindanao subsequently decreased from 77 percent to 19 percent, numbers which are reflected also in land ownership. Increased political, economic and social polarisation has adversely affected the Muslim population, leading to widespread dissatisfaction and an upsurge of armed separatist groups. In an attempt to defuse tensions in Mindanao, an Autonomous Region in Muslim Mindanao (ARMM) has been established. The establishment of ARMM, however, has been insufficient to solve the grievances of the Muslim minority. A further contribution would be an electoral reform in the Philippines as a whole, which would also address the conflict with the communists.66

The Philippines is a unitary republic with a presidential system. The 1987 Constitution (Article VI) defines a bicameral legislature with an upper house, the Senate (Senado), and a lower house, the House of Representatives (Kapulangan Ng Mga Kinatawan). Laws must be passed by both chambers. However, appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application and private bills, may not originate in the Senate. The president has a delay veto. A bill passed by the houses is presented to the president, who may return it with amendments to the house where it originated. It takes a two- thirds majority in both houses to override the presidential veto. In addition, the president has a line-item veto on appropriations, revenue or tariff bills.

The House of Representatives has up to 250 members unless the number is increased by law67, where up to 200 are elected in a first-past-the-post system in single-member constituencies from the different provinces, cities and the Metropolitan Manila (Constitution Article VI, 5).68 There are seventeen regions. These consist of provinces following administrative units. Each of the units has from one to seven seats. Those with more than one seat are further sub-divided into single-member constituencies. In addition, twenty percent of the total number is supposed to be elected from nation-wide party lists under a proportional system, where only the less prominent parties may participate. Each voter has two ballots: One for the regular constituency election and one for the party list. The top five parties of a previous election cannot propose lists. The idea is to offer seats to minority groups, which have difficulties in winning seats under a first-past-the-post system.69 A particular list needs at least two percent of the votes to get a mandate, and it can only win up to three mandates.

66 For an assessment of ARMM and political participation inside ARMM, see Blanc, Hylland and Vollan 2006: 92-94. 67 The House elected in 2010 has 283 members. 68

69 An Act Providing for the Election of Party-List representatives through the Party-List System, and Appropriating Funds Therefor. Republic Act No.7941. March 3 1995 states: ”Declaration of Policy – The State shall promote proportional representation in the election of representatives to the House of Representatives through a party-list system of registered national, regional and sector parties or organizations or coalitions thereof, which will enable Filipino citizens belonging to the marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members

When the system was first used, it was not possible by this rule to fill all the seats dedicated for the groups, but the rule was later changed so that one allocates one seat to each of the largest party lists with less than two percent until the twenty percent quota is filled.70

In the Senate, there are 24 senators serving in staggered terms, so that twelve are elected at one Election Day, and the other twelve are elected three years later. The electoral system [for the Senate] is first-past-the-post, with the whole country as one constituency. The voters vote for individual candidates and can cast more than one vote (probably up to twelve). The twelve candidates with the highest number of votes are elected. The system is often referred to as the block vote system.

3.2.9 Singapore Singapore is a unitary republic with a semi-presidential system. The president may not veto legislation passed by parliament (Constitution, Article 58). The legislature may, however, not introduce legislation related to taxation, government expenditures, government debt, and other financial issues (Constitution, Article 59). Legislation is subject to judicial review (Constitution, Article 4; 100).

The electoral system combines FPTP in single-member constituencies and party block vote multi-member constituencies with reserved group representation (Constitution, Article 39A.1a). There are not a fixed number of seats in the parliament but there needs to be at least eight single-member constituencies and at least one-quarter are to be elected from multi- member constituencies with a magnitude from three to six. Constituencies are drawn by the president and may be changed from time to time. There are, however, at least eight single- member constituencies at any time. The group representation constituencies are reserved for the Malay, Indian or other minority groups, who are to constitute at least a quarter of the members in the principal chamber (Parliamentary Elections Act, Article 8A.2). In a group representation constituency, elections are “held on a basis of a group of not less than 3 but not more than 6 candidates” (Constitution Article 39A.1a). Article 39A.2a further stipulates that:

[… ] at least one of the candidates in every group shall be a person belonging to the Malay community; or […] at least one of the candidates in every group shall be a person belonging to the Indian or other minority communities; Article 8A.3 states that Group constituencies designated under subsection b (i) are to constitute three-fifths of the total number of group representation constituencies. Article

of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sector or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible.” The ‘sectors’ are defined as: “sectors shall include labour, peasant, fisher folk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and professionals.”

70 See results of the 2010 elections at the election commission’s (COMELEC) web site, http://www.comelec.gov.ph.

9A.2c states that each group must consist of members from the same political party or a cluster of independent candidates standing as a group.

In the 2006 election, nine members were elected from single-member constituencies, and seventy were elected from fourteen multi-member constituencies. The ruling party (PAP) won all multi-member constituencies plus seven single-member constituencies and two opposition parties won one of the single-member constituencies each (SDP and WP). In contested multi-member constituencies PAP got from 56 to 77 percent of the votes (and 100 percent of the seats).

In addition to constituency members, as many as six members can be appointed by the legislature in order to “to ensure the representation in Parliament of a minimum number of Members from a political party or parties not forming the Government”. Furthermore, the president may appoint as many as nine members. These appointees are to be

… persons who have rendered distinguished public service, or who have brought honour to the Republic, or who have distinguished themselves in the field of arts and letters, culture, the sciences, business, industry, the professions, social or community service or the labour movement; and in making any nomination, the Special Select Committee shall have regard to the need for nominated Members to reflect as wide a range of independent and non-partisan views as possible (Constitution, Article 39.b; Fourth Schedule). 71

3.2.10 Main Findings Afghanistan, India, Nepal, Philippines and Pakistan have quotas for social groups. Fiji, India, Kiribati, Nepal, New Zealand, Samoa and Singapore have ethnic quotas. Pakistan has a quota reserved for religious minorities. Only in Fiji one may say that the quotas are intending to directly represent groups in conflict. However, in Nepal the quotas are meant to address the underlying social and ethnic problems that caused the armed conflicts of the 1990s and 2000s. In other countries, the quotas have been introduced based upon a view of ‘fairness’ but clearly they may also contribute to lower group-based conflicts.

Some of the quota rules intended to provide minority representation represents arrangements where one has made an effort to repair a FPTP system that does not automatically give the desired diversity. In particular, in Pakistan and in the Philippines, the minority representation comes as add-ons to the general system which introduces side effects that could have been avoided by a more fundamental overhaul of the system.

In Pakistan72, religious minorities are elected on lists of the main-stream parties in accordance with their parliamentary representation. For example, the Hindu candidates are elected from the Muslim League party based upon the general political contest where the voters primarily select the parties’ candidates in single-member constituencies. The accountability is therefore very weak and the distance from the voters to those elected representing minorities is unnecessarily large.

71 Non-Constituency members have restricted voting rights, see Constitution Article 39.2. 72 A similar system is now introduced for group representation in Kenya.

In the Philippines, one needs to define parties representing the selected sectors and which have not done well in previous elections. Exclusion of the biggest parties from contesting in the proportional part of the election is extraordinary and can give very random results. The link to previous elections means that the result does not necessarily reflect the voters' will on Election Day and the system is unnecessarily intricate.

Both in Pakistan and in the Philippines, the purpose seems to have been to compensate for the defects of the plural system, which favour the big parties and groups, by repairing it in such a way that new unreasonable features are introduced. In both countries, a mixed system combining first-past-the-post (FPTP) in single-member constituencies with list proportional (List PR) systems could have been used and the voters would have direct influence on who is elected and even small parties would be represented without introducing a ’small party race’. If there would be an additional need to protect some groups, quota systems for ethnic or religious minorities could be considered.

The system in Singapore is part of a party block vote system, which will inevitably give the biggest party of a multi-member constituency all seats of that constituency and, most likely, all seats contested under that system. In general, party block vote systems should be avoided in multi-party national elections.

3.3 Central Eastern Europe

3.3.1 Introduction Parliamentary quotas based on ethnicity or languages are found in all the former Yugoslav republics, except Macedonia.73

Minority quotas in Poland and Romania are not related to violent conflicts, but to the presence of linguistic minorities within their territorial borders.

73 The 2002 Ohrid Agreement, which contains a broad range of measures to ensure minority rights, but does not include guaranteed minority representation in parliament.

Table of systems Central Eastern Europe Basis of Democracy Country Electoral System Type of quota Quota Index House of Representatives BOSNIA AND Nomination percentage and (Predstavnički Dom ) HERZEGOVINA Gender rank order List PR with

compensation Partly free Parliamentary assembly (Parlamentarna House of Peoples Skupština) (Dom Narodna) Ethnicity Earmarked seats Indirect List PR

Croatian parliament Earmarked seats, separate (Hrvatski Sabor) CROATIA Ethnicity race, separate voters Free

registers List PR Reserved seats Ethnicity Separate race Kosovo Assembly Nomination percentage and KOSOVO (Kuvendi i Kosovës) Partly free rank order List PR Gender Requirements to result BRU to fill quota

MONTENEGRO List PR Ethnicity Reserved constituency Free

Principal chamber Ethnicity and POLAND (Sejm) Threshold exemption language List PR Free Parliament Senate (Parlament) (Senat) No quota No quota Block Vote Chamber of Deputies (Camera Deputatilor) Ethnicity and Earmarked seats, best ROMANIA language runner-up List PR Free Parliament Senate (Parlamentul) (Senat) No quota No quota

List PR Lower threshold for National Assembly Ethnicity SERBIA (Narodna skupshtina) minority parties Requirements to Free List PR Gender nomination percentage and rank order National Assembly (Državni zbor) Separate race Ethnicity SLOVENIA earmarked constituencies List PR Parliament National Council Free (Parlament) (Državni svet) Interest groups Reserved seats Indirect elections by electoral colleges

3.3.2 Bosnia and Herzegovina Bosnia and Herzegovina is a federation consisting of a Croat-Bosniac entity, the Federation of Bosnia and Herzegovina, covering 51 percent of the territory of the federal state, and the Serb-led entity Republika Srpska, covering 49 percent.

The legislative framework for elections in Bosnia and Herzegovina is constituted by the 2001 Election Law, and Annex 4 of the Dayton Agreement, which is Bosnia and Herzegovina’s constitution. The parliament is bicameral and consists of the House of Representatives and the House of Peoples.

The form of government is a hybrid with a presidency of three directly-elected members with rotating chairs and a Council of Ministers led by a prime minister who needs the confidence of the House of Representatives.

There are 42 members of the House of Representatives. Of these, one-third is elected from Republika Srpska, and two-thirds from the Federation of Bosnia and Herzegovina. The electoral system is List PR in multi-member constituencies with entity-wide compensation.

House of Peoples consists of 15 members: five Bosniacs, five Croats and five Serbs. They are elected by List PR. Individuals who do not belong to any of the three groups cannot run for the House of Peoples. In addition, the Bosniacs and Croats are elected by the Federation of Bosnia and Herzegovina and Serbs by the Republika Srpska, so Serbs living in the Federation cannot be elected and similarly for Bosniacs and Croats living in Republika Srpska.

The Presidency consists of one Serb, one Croat and one Bosniac and the restrictions to run as a member is as for the House of Peoples.

Voting in the House of Representatives is based on equal votes of all citizens, whereas the House of Peoples are elected by a house of the entity parliaments. Legislation needs to be approved by a majority of those present and voting in both chambers as the main rule. There is, however, both a rule for double majority (entity voting), a Vital National Interest Clause that can be invoked to block any legislation which is perceived as detrimental to any of the three groups.

The Dayton Agreement also defines the role of the International High Representative with wide authorities that were further expanded during the first years in office (the Bonn Powers). A thorough discussion of the representation and the power-sharing arrangements in Bosnia and Herzegovina is found in the case study in Chapter 6.

3.3.3 Croatia Croatia is a unitary republic with a hybrid system of government with a directly-elected president with limited powers and most of the executive powers vested in the government headed by a prime minister The Croatian Parliament is unicameral and consists of no less than 100, and no more than 160 members (Constitution, Article 71). These are elected through List PR with closed lists. There are 10 constituencies, each electing 14 members. In addition, there are two separate constituencies for recognized minorities and diaspora voters, respectively.

The number of diaspora representatives can be a maximum of twelve, depending on the turnout.

Article 15 of the Constitution and Articles 15-16 of the Election Law provides for the right of national minorities to be represented in parliament by a total of eight members. What constitutes a national minority is defined in the Minorities Act Article 5 as “a group of Croatian citizens whose members traditionally inhabit the territory of the Republic of Croatia, its members having ethnic, linguistic, cultural and/or religious characteristics different from other citizens and are led by the wish to preserve these characteristics”.

Article 19 of the National Minorities Act further states that the members of national minorities may elect no less than five and no more than eight of their representatives in special constituencies. Members of national minorities that “in the total amount of population of the Republic of Croatia participate with more than 1.5 percent, one seat is guaranteed”, with a maximum of three seats for this particular minority.

Article 16 of the Election Law stipulates how these seats are to be distributed among the various minorities.74 The eight minority members are elected through FPTP from eight lists in a “special constituency being the territory of the Republic of Croatia” (Election Law, Article 15). National minority voters can choose to be registered in the separate voters rolls and thus vote in the special constituencies or they may stay in the general register and vote in the general race.75

3.3.4 Kosovo Kosovo is a unitary republic with a hybrid system of government emerging from a civil war and war on secession. The President has limited powers and is indirectly elected, whereas the executive powers rest mainly with the government led by a prime minister who needs to have the confidence of the parliament. The parliament is unicameral. Members of the Assembly are elected through List PR in one constituency covering the entirety of Kosovo (Election Law, Article 110.1). The national threshold is five percent (Election Law, Article 112.2 (a, b)). Political Party, Coalition, Citizens’ Initiative or Independent candidate may submit candidate lists (Election Law, Article 110.2). These appear on an ‘open list’ ballot.

Voters shall vote for one (1) certified Entity and may vote for one (1) candidate from the said Political Entity’s candidate list […] A vote cast for a Political Entity shall be considered as a vote cast for the candidate ranking first on the Political Entity’s candidate list.

Twenty out of the 120 seats in parliament are reserved for minority communities and are distributed to lists that have a minority label. The ten Serb seats are, for example, distributed to the Serb parties only, irrespective of whether the same parties have won some of the 100 seats. Voters cast only one ballot, but the results are calculated for each race: the general one, the Serb one, etc.

74 “Members of national minorities from the Article 16 of this Act shall elect representatives to the Parliament by individual elections, in the manner that the candidate is elected who has won the most votes of the voters who have cast their votes” (Election Law, Article 43). 75 OSCE/ODIHR and the Venice Commission 2007.

There is also a gender quota, (Election Law, Article 27) whereby parties are required to set up lists where:

at least thirty (30 %) percent shall be male and at least thirty (30 %) percent shall be female, with one candidate from each gender included at least once in each group of three candidates, counting from the first candidate in the list..

3.3.5 Montenegro Montenegro is a unitary republic with a directly-elected president with limited powers and otherwise mainly with a parliamentary system of government. Parliament consists of 81 members (Constitution, Article 83). These are elected through List PR with open lists from the whole republic as a single constituency. The electoral threshold is 3 percent (Election Law, Article 12; 93-96).

Five of the 81 deputies are chosen from designated polling stations defined by the special resolution passed by the Assembly (Election Law, Article 12.2). These 70 polling stations are located in areas populated primarily by ethnic Albanians. Election lists can receive seat allocations in both the general race and in the special race, providing that the electoral threshold of 3 percent is passed. If a list does not reach the threshold in either race, the votes from one race are re-allocated to the other.76 It is up to each individual to register in these polling stations, where all parties can compete for elections – not only Albanians. In this special race, Albanian coalitions have been able to win seats that they would otherwise not have won.77

Laws that regulate how acquired minority rights are exercised, require a two-thirds majority (Constitution, Article 91).

3.3.6 Poland Poland is a unitary republic with a directly-elected president with limited powers and otherwise has a parliamentary system. The legislature is bicameral, consisting of the principal chamber (Sejm) and the Senate (Senat). The Sejm consists of 460 members elected by list PR with open lists in 41 constituencies. The 100 senators are elected by block vote in 40 constituencies.78 The national threshold for the Sejm is five percent for parties and eight percent for coalitions. Parties representing national minorities are exempt from this requirement (Election Law, Articles 133-134). Article 2.2 of the Law on National and Ethnic Minorities and Regional Languages of 8 January 2005, identifies nine national minorities in Poland: Armenian, Belarusian, Czech, German, Jewish, Lithuanian, Russian, Slovak and Ukrainian. However, in the 2007 elections, only the German minority in the Opole constituency in Silesia took advantage of this option.79 The German minority party Deutsche Minderheit, established in 1990, gained seven seats in the 1991 elections and four in the 1993 elections. Support for the party has, however, steadily declined, and in 2005, the party managed to secure only one seat.

76 OSCE/ODIHR 2009a: 4. 77 Blanc, Hylland and Vollan 2006: 75-76. 78 For elections to the Senate, Kraków and Chrzanów form a single constituency. 79 OSCE/ODIHR 2008: 18.

3.3.7 Romania Romania is a unitary republic with a hybrid system of government. The President is directly elected and the government needs the confidence of the parliament. The President’s power is limited but there are frequent conflicts about how the division of powers between the President and the Council of Ministers. The legislature is bicameral, consisting of a Chamber of Deputies (Camera Deputatilor) and a Senate (Senat). Both senators and deputies are elected by List PR with nation-wide compensation. The number of members of each chamber varies with the population and the number of representatives granted as per the special arrangements for minority representation. After the 2008 election, the Senate had 137 members, and the Chamber of Deputies had 334 members.

For both chambers, there are 42 multi-member constituencies corresponding to administrative units plus one that is designated for Romanians living abroad, in total, 4380. Each multi- member constituency is further divided into ‘uninominal colleges’, which are kinds of single- member constituencies where candidates are running, but the representation depends on the proportional representation of seats not directly related the results of the election in the uninominal college81. The number of such uninominal colleges corresponds to the number of seats of the multi-member constituency, provided that there is at least four for the Chamber of Deputies and two for the Senate in each multi-member constituency.

In order to win seats, there is a nationwide threshold of five percent for both chambers. For alliances, the threshold is increased with three percent for the second party and one percent for subsequent parties, up to a maximum of ten percent. For the Chamber of Deputies, the threshold may also be met if the list party or alliance’s candidate comes out first in at least six uninominal colleges and for the Senate three.

Candidates are nominated by parties and alliances in the uninominal colleges, restricted to one per electoral competitor. The voters vote for one of these candidates. Candidates who win more than fifty percent of the votes in a uninominal college and belong to a competitor having passed the threshold are elected. After this, the votes per electoral competitor are added up to national level and it is determined how many seats each competitor is entitled to per multi- member constituency. The seats already won in the uninominal colleges are deducted from the result and the rest of the seats are given to unelected candidates in uninominal colleges where the seat is not filled according to the candidates’ relative strength.

The system will produce a close to proportional result nationwide and it will secure geographical representation, but the candidate with the highest number of votes in a uninominal college is not necessarily elected.

There are special arrangements for the representation of national minorities, defined as groups represented in the Council of National Minorities (approximately twenty). The rules are

80 Election law (Law No 35) last changed on 13 March 2008. 81 With the exception mentioned below.

58 aimed at guaranteeing representation to the smaller minorities such as Roma, Bulgarians, Ukrainians, etc., whereas the largest minority, the Hungarians, is represented without any affirmative action.

The Constitution Article 62 paragraph 2 states that “Organizations of citizens belonging to national minorities, which fail to obtain the number of votes for representation in Parliament, have the right to one Deputy seat each, under the terms of the electoral law. Citizens of a national minority are entitled to be represented by one organization only”.

The electoral law specifies (Articles 9 (1) and 47 (4)) that a minority group not winning a seat in Parliament (any house) by the ordinary election will get one deputy, provided that the organisation has won in the whole country, at least ten percent of the average number of validly cast votes for a Deputy. In the last elections, eighteen minority parties have won one seat each under this provision.

3.3.8 Serbia Serbia is a unitary republic with a parliamentary political system. The President is mainly a ceremonial head of state. The Parliament is unicameral and has 250 members. These are elected from the whole territory as one constituency through a closed List PR system (Election Law, Article 4) with an electoral threshold of five percent (Election Law, Article 81).

Parties “whose basic aim is to represent and stand for the interests of an ethnic minority... shall be considered political parties”, according to Article 81 of the Election law. Once an electoral list is proclaimed, the Republic Electoral Commission decides whether the submitter of the electoral list should be considered an ethnic minority party or coalition. These parties are exempt from the electoral threshold.

There is also a gender quota enshrined in Article 40a of the Electoral law, imposing a nomination percentage and rank order to electoral lists:

For every four candidates on the electoral list (first group of four places, second group of four places and so on until the end of the list) there shall be one candidate of the gender less represented on the list, and the number of candidates of the gender less represented on the list shall be at least 30 percent of the total number.

3.3.9 Slovenia Slovenia is a unitary republic with a parliamentary political system. The President is mainly a ceremonial head of state. The Slovenian parliament is bicameral and consists of a National Assembly and a National Council. The National Assembly of Slovenia consists of ninety deputies. Of these, eighty-eight are elected from eight eleven-member constituencies (Election Law, Article 20). These are elected by List PR from open lists with an electoral threshold of four percent (Constitution, Article 80). The 40 members of the National Council are indirectly elected by interest groups.

One deputy of the Italian and one deputy of the Hungarian national communities shall always be elected to the National Assembly (Constitution, Article 80). Only members of the Italian

59 and Hungarian national communities shall have the right to vote for and be elected as deputies of these national communities (Election Law, Article 8). Special constituencies are to be formed “in those areas in which these communities reside”. The two candidates are elected by de Borda Count. Each voter gives a number from one up to the number of candidates to the candidates, in order of their preference. The Election Law Article 94 describes the counting:

Points shall be assigned to candidates according to orders of preference. For each first place the candidate shall receive as many points as there were candidates on the ballot paper, and for each successive place a point less. The points of each candidate shall be totalled. The 40 members of the National Council are indirectly elected and represent “social, economic, professional and local interests”:

It is composed of: four representatives of employers; four representatives of employees; four representatives of farmers, crafts and trades, and independent professions; six representatives of non- commercial fields; twenty-two representatives of local interests (Constitution, Article 96).

3.3.10 Main Findings Only in Bosnia and Herzegovina and in Kosovo are the quotas the main elements of a power- sharing agreement between groups who had been in conflict. In Bosnia and Herzegovina, they are accompanied by a set of decision-making rules that make up the power-sharing and their effects are discussed in detail in the in-depth study.

The other quota arrangements in this area are mainly introduced in order to accommodate small groups that would otherwise not be represented and the technical implementation is well-integrated into the general system.

3.4 Middle East and North Africa

3.4.1 Introduction Lebanon is the only country in the region that has introduced quotas as part of a power- sharing agreement after conflict. The other countries in this region have quotas in order to increase diversity but not necessarily to prevent conflict.

Table of systems Middle East and North Africa Electoral System Democracy Country Basis of Quota Type of quota Index People’s Assembly Requirements to (Majilis al-Sha’ab) Social group result

Direct, two-member Best runner-up majoritarian (TRS) + Earmarked seats presidential Separate race in EGYPT appointment Gender earmarked

constituencies Not free Parliament (Majilis al-Sha’ab) Advisory Council (Majilis al-Shura) Requirements to Direct, single- Social group result member majoritarian Best runner-up (TRS) + presidential appointment Chamber of Earmarked seats Deputies Religion Earmarked sub (Majlis al-Nuwaab) districts SNTV in multi- member JORDAN Not free (partly constituencies Gender Best runner-up National Assembly free in 2009) House of Notables (Majlis al-Aayan)

Appointed by the No quota King National Assembly (Majlis al-Nuwaab) All seats are earmarked in multi- LEBANON Religion Partly free Block vote in multi- member member constituencies constituencies Palestinian PALESTINIAN Requirement to the AUTHORITY Legislative Council Parallel (List PR / Religion result, best runner- Not ranked up Block vote) People’s Assembly Social Group SYRIA Not free Block vote (workers and farmers)

3.4.2 Jordan Jordan is a unitary, hereditary monarchy. The King appoints the Prime Minister and cabinet ministers. Parliamentary approval is not required (Constitution, Article 35). The Chamber of Deputies can vote no-confidence in the government (Constitution, Articles 53-54), whereas the King can dissolve both houses of the legislature and remove individual senators (Constitution, Articles 34 and 74).

The National Assembly is bicameral. There are 120 seats (after the 2010 reform) in the Lower House of Parliament or the House of Deputies (Majlis al-Nuwaab), elected by SNTV. The Senate, the House of Notables (Majlis al-Aayan), has 60 seats, all appointed wholly by the King. Laws are drafted upon request from the relevant house committee (Constitution, Article

95). A two-thirds majority in both houses is required to pass laws. If either house rejects the bill, “it shall not be placed again before the House during the same session” (Constitution, Article 92). Once a draft law is passed, it is submitted to the King for ratification. The King may choose to refer it back to the house within six months, in which case, a two-thirds majority in both chambers is required to override a royal veto (Constitution, Article 93).

The Jordanian Parliament was suspended in November 2009, after its members had served only half of their terms. At the same time, the King ordered that a new election law be drafted. This was to be part of a broader reform effort. The new election law that was promulgated in May 2010 retained both a variant of the SNTV system and the quotas for women and religious minorities from the previous laws, but with some important changes. The law responded to some key reformist demands, by adding four seats to cities with large Palestinian populations who have been continuously underrepresented in Parliament. According to the new election law, the country is divided into 45 multi-member constituencies out of which three are reserved for Bedouins, which are further subdivided into so-called virtual 108 single-seat sub-districts. The sub-districts are partly geographical and partly reserved for Christians (nine), Circassians (three) and Bedouins (nine). Candidates run in the 108 sub-districts but voters may cast one vote for any candidate of any virtual sub- district in the constituency. The candidate with the highest number votes per sub-district is elected. The extra female quota was doubled from six to twelve. The female candidates, not already elected, with the highest proportion of the votes in their sub-district nationwide are elected, provided that there is not more than one woman elected of the female quota from any of the twelve governorates or three Bedouin constituencies.

The most important demand was not met, however, and that was to replace SNTV with a more proportional system. However, the King called for political and electoral reform in early 2011 to encourage increased participation in the political process. A National Dialogue Committee was formed by the King in early 2011 to make reform recommendations to the Government. This national debate regarding political and electoral reform is ongoing as of August 2011.

3.4.3 Lebanon Lebanon is a unitary republic with a hybrid form of government. The executive powers are shared between an indirectly-elected president and a prime minister and they form a cabinet together. The legislative is unicameral. Laws are passed by regular (not qualified) majority. A presidential veto may be overridden by a majority vote (Constitution, Article 57).

The legislature is unicameral. 128 representatives are directly elected by the block vote system from 27 constituencies. The total number of seats is equally distributed between Christian and Moslem candidates. The Christian seats are further distributed with a fixed number to Maronite, Greek Catholic, Greek Orthodox, Evangelical, Armenian Catholic, Armenian Orthodox and Christian Minorities; whereas the Muslim seats are distributed to Sunni, Shi’a, Druze and Alawi. Every seat is earmarked for a confessional group in every constituency. The candidates who win the highest number of votes for each religious community running in a constituency are elected. As one of three selected case studies,

Lebanon is only summarily described here. See Chapter 4 for a more thorough presentation of the Lebanese election law and the background to it.

3.4.4 The Palestinian Territory The Palestinian Territory consists of the West Bank and the Gaza Strip. The political system is stipulated in the Palestinian Basic Law. While a new Election Law was issued by presidential decree in 2008, the following is based on the Election Law that was adopted by the Palestinian Legislative Council (PLC) in 2005.

The Palestinian Territory does not constitute a state, but is a partly self-ruled Palestinian Authority under Israeli occupation. The current status of the political institutions and separate geographical entities are defined in the so-called Oslo Agreements of 1993 and 1995 and subsequent agreements. The political system is a hybrid system with a strong president but with a government that needs the confidence of the PLC. The PLC is unicameral. The legislature can override a presidential veto with a two-thirds majority (Basic Law, Article 41). Laws can be subject to constitutional review by the High Court until a Constitutional Court has been established (Basic Law, Article 103).

The PLC has 132 members elected according to a parallel system. Half of the members are elected under the block vote system in sixteen constituencies. The other half is elected by List PR from one territory-wide constituency (Election Law, Article 3). Each constituency gets a number of seats according to the size of its population, but with a minimum of one from each. Voters get two ballots – one for the constituency elections, and one for the territory-wide elections. The two elections are independent of each other in the sense that the distribution of seats in the proportional election is not dependent on the distribution in the constituencies. Parties can nominate as many candidates as there are seats in the constituency. The voter can vote for up to as many candidates on the list as there are seats in the constituency. She or he may choose candidates across affiliations. The candidates with the highest number of votes are elected. 82

In a few constituencies, there is a quota for Christians, six seats in total. These are distributed to the constituencies according to a presidential decree (Article 3.a). In addition, there is a quota for women applied to the List PR race. Every list must fulfil the following criteria to be accepted: Among the first three candidates at least one has to be a woman, among the first seven there must to be two, among the first twelve there must three and then one more for each step of five (Election Law, Article 4).

In 2007, a new Election Law introducing a fully proportional system was introduced by presidential decree.83 Due to the political impasse between Fatah and Hamas, the new Election Law has not been ratified by the Legislative Council.

82 For a thorough introduction of the Palestinian Electoral system, see Butenschøn and Vollan 2006. 83 See information about the presidential decree at the website of the Palestinian General Elections Commission, http://www.elections.ps:90/template.aspx?id=143&sndx=2 .

3.4.5 Main Findings The quota systems applied in this area are mainly designed to favour religious minorities who have existed in the region for centuries, except for the cases of the peasant and worker quotas in Syria and Egypt. Some quotas also favour ethnic minorities.

It is only in Lebanon that the quotas are a direct answer to a communal conflict and where they form an important element in a power-sharing arrangement. The system in Lebanon combines a winner-takes-all system (block vote) with extensive quotas in a way where the voters' choice is becoming unnecessarily limited and where the voters from minority groups feel overruled by the majority. For further discussions on Lebanon see Chapter 4.

3.5 Sub-Saharan Africa

3.5.1 Introduction Here we should first reiterate that the countries included in the study only include those that have some kind of quota or affirmative action for ethnic, linguistic, etc. groups. This means that important conflict countries, such as Sudan, Congo and Zimbabwe are left out even if they have severe ethnic conflicts.

The Burundi and Rwanda conflicts

Only Burundi has quotas that reflect the conflict between Hutus and Tutsis. Rwanda has chosen a different path by rather understating the ethnic conflict and emphasising that every person is equal. The way it is implemented in Rwanda is based upon an autocratic leadership and would fall outside a study of what we consider to be models of democratic reconciliation. We have, however, chosen to include Rwanda in the study for the comparison with Burundi, even though the selection criteria otherwise being employed would not have given the country space.

Table of systems Sub-Saharan Africa Country and Basis of Democracy name of Electoral System Type of quota Quota Index assembly Requirements to candidate nominations of the two major ethnicities Requirements to the result: Supplementing from lists to Ethnicity National Assembly top quota (Inama NshingmateKa) Earmarked seats: Appointment of representatives of the small List proportional + appointments group Twas from predefined lists BURUNDI Requirements to candidate

Gender nominations Requirements to Parliament Partly free result (Parlement) Earmarked seats Indirect elections by electoral Ethnicity colleges Separate race for Hutus and Senate (Sénat) Indirect, double Tutsis Appointment of Twas member majoritarian (three from predefined lists round system) + appointments Requirement to results Supplementation by Gender the election commission from lists to top quota House of People’s Representatives (Yehizbetewekayoch Mekir Bet) Ethnicity Earmarked seats with Indirect Single-member plurality (FPTP) elections to ensure quota ETHIOPIA Not free Parliament (Mekir + indirect elections (partly free in Bet) House of Federation 2011) Requirements to results (Yefedereshn Mekir Bet) Ethnicity Electoral colleges to ensure Indirect, single-member plurality quota for small ethnic groups (FPTP) + indirect elections List PR from separate, closed House of Representatives Social party lists, based on the FPTP + representation based groups distribution of seats in upon the representation of the parliament directly elected members Gender Reserved seats FPTP KENYA List PR from separate, closed Partly free Parliament Social party lists, based on the Senate groups distribution of seats in FPTP + representation based parliament upon the representation of the List PR from separate, closed directly elected members party lists, based on the Gender distribution of seats in parliament

National Assembly Requirements to results for major MAURITIUS Multimember plurality Ethnicity groups Free

(block vote) Best runner-up Earmarked seats Ethnicity Earmarked constituencies with FPTP NIGER National Assembly for small groups Partly (Assamblée National) free Requirements to candidate Mixed (List PR/FPTP) Gender nominations

Chamber of Deputies Youth and disabled Earmarked seats (Umutwe w’Abadepite) Indirect elections based on FPTP by interest groups Direct election with List PR in one single Earmarked seats constituency Indirect elections based upon FPTP Indirect election Gender by electoral colleges in administrative units and requirements RWANDA to result in the regular race Parliament Not free (Inteko Ishinga Requirements to candidate Social groups Amategeko) The Senate nominations (Historically (Umutwe wa Sena) Requirements to result marginalized groups Appointment by president and and academics) List PR indirect elections by interest groups to fill quota Indirect and Requirements to candidate appointments nominations

Gender Requirements to result Indirect elections based by local councils Earmarked seats Special interest Indirect elections by electoral National Assembly groups UGANDA Direct, single-member colleges Partly plurality (FPTP) + free National Assembly indirect elections + Earmarked seats appointments Gender Separate race

3.5.2 Burundi Long-standing tension between Hutus and Tutsis has led to several periods of serious ethnic violence in Burundi, the last of which was ended by the Arusha Peace and Reconciliation Agreement of 2000. The agreement set 31 October 2004 as the deadline for the end of a transitional period, but it would take one more year before Burundi’s current constitution was approved in a popular referendum in 2005. Parliamentary elections followed under a new election law, introducing ethnic quotas. This was further amended in 2009, without significantly altering the quota mechanism.84 Hutus and Tutsis are the two major ethnic groups in Burundi, constituting 85 and 14 percent of the population respectively. Twas

84 The Election Law was amended in 2009, but alterations to the quota were minor, and the content of this presentation still applies. 66

(Pygmies) are estimated to form one percent of the population.85 The constitutional and electoral framework fixes the relative balance between Hutus and Tutsis in both houses of parliament, while at the same time guaranteeing a minimum representation for Twas (Constitution, Articles 164 and 180).

Burundi is a unitary republic. The political system is presidential, but the overall composition of the cabinet must be proportional to the representation of parties in the National Assembly (Constitution, Article 129), which derives from an underlying consensus model. Parliament consists of a principal chamber, the National Assembly (Inama NshingmateKa) and the Senate (Sénat) (Constitution, Article 147).

Burundi is divided into seventeen provinces, each constituting one constituency. The number of deputies that each constituency sends to the National Assembly is proportional to the population (Election law, Articles 126 and 128), and the total number of deputies is to be no less than 100 (Constitution Article 129). Elections for the National Assembly are list proportional with closed lists (Constitution, Article 129). The electoral threshold for a party to be considered elected to the National Assembly is five percent of the national vote (Constitution, Article 169; Election law, Article 156). Elections for the Senate combine indirect elections through local electoral colleges and appointments by the Electoral Commission. In addition, former heads of state are members ex officio.

The legislative framework contains elements of minority protection as well as power-sharing between the two major groups. Of the 100 deputies in the National Assembly, at least 60 percent must be Hutu, and 40 percent Tutsi.86 Furthermore, at least 30 percent of the deputies are to be women (2009 Election Law, Article 108).

In order to achieve the quotas, every party must include at least one Hutu and one Tutsi for every three candidates on their lists. At least one out of four members of the list must be a woman (Constitution, Article 168 and Election Law, Article 108). If this is not sufficient to ensure a 60-40 Hutu-Tutsi split and 30 percent female representation in the National Assembly, the Electoral Commission will allocate additional seats to rectify the imbalance. These candidates are chosen from lists of political parties or independents who have obtained at least 5 percent of the vote (Election Law, Article 108)87. Three additional seats are allocated to Twas from different regions. These are chosen from lists presented by recognized Twa organizations, taking geography and gender distribution into account (Election Law, Article 108).88

85 CIA World Fact Book, https://www.cia.gov/library/publications/the-world-factbook/geos/by.html, . 86 The constitution (Article 129) applies the same principle to the executive. Article 143 of the constitution also applies the ethnic quota to the Burundian bureaucracy, but not the gender quota. The Twas are only assured places in the Parliament, and not in the executive branch or the bureaucracy. 87 The constitution does not advise on how the Electoral Commission shall ensure the balance between the parties in their appointments. 88 The Burundian Election Law was revised in 2009, removing an earlier provision aimed at ensuring broad political representation: “If, in the first elections, a party gets more than three-fifths of the seats in direct elections, a total of 18-21 additional representatives are to be appointed by the National Independent Election

The Senate consists of two delegates from each province: one Hutu, and one Tutsi. These two delegates are elected by a multi-ethnic electoral college in each district in separate races. The electoral colleges consist of members from the communal councils (Election Law, Article 141). Each member has two votes, one for a Hutu, and one for a Tutsi candidate.89 The two candidates are elected in a three-round system, whereby each party or group of independent individuals presents a candidate and a deputy. The candidate is elected who obtains a two- thirds majority of the votes. If this is not achieved in the first round, a second round is arranged. If the required majority is still not achieved, a third round is organized between the two candidates who obtain the largest number of votes. The candidate who gets the highest number of the votes is elected (Election Law, Article 141).

At least 30 percent of the senators have to be women. If this percentage is not achieved, the Electoral Commission allocates additional seats to parties having reached the 5 percent threshold in order to rectify the imbalance. This is done in consultation with the concerned parties. In addition, three seats are reserved for the Twa (Constitution, Article 161).

A quota is also applied to the Burundian executive. The President of the republic is assisted by two vice presidents who deal with political and administrative issues and economic and social issues respectively (Constitution, Article 122). The two vice presidents may neither be of the same ethnicity, nor from the same party (Constitution, Article 124). Sixty percent of government ministers and deputies must be Hutu, and 40 percent are to be Tutsi. At least one- third of the ministers must be women (Constitution, Article 129).

Bills are presented to the Senate and the National Assembly simultaneously (Constitution, Article 188). Articles 175 and 186 of the Constitution require a two-thirds majority (and at least half the total membership voting in favour) in both houses in order to adopt laws, e.g. Article 175 states:

The National Assembly may not deliberate laws unless two thirds of all members are present. Laws are passed with a two-thirds majority of all members or deputies present. Organic Laws are passed by two thirds of the members present or their deputies, unless this majority is less than the absolute majority of all members in the National Assembly. Resolutions, decisions and important recommendations are passed with a two-thirds majority of members or deputies present. These majority requirements also apply to the Senate. The Senate, however, does not vote on resolutions, decisions and recommendations (Constitution, Article 186). The Senate comments or suggests amendments to the legislation adopted by the National Assembly (Constitution, Article 187.7-8). The Senate also approves amendments to the constitution and organic laws, giving the upper house a stronger role in constitutional matters (Constitution, Article 187.1). While the Senate has the power to review legislation from the National Assembly, it does not have a full veto (Constitution, Article 188-190).

Commission in equal numbers from lists who have achieved at least 2% of the vote or two persons from each list in case more than seven lists have reached the above mentioned threshold.” 89 Reyntjens 2005: 128.

Laws adopted by parliament are promulgated by the president, unless the president decides to request a second reading, in which case the same text will need a three-fourths majority in both houses in order to be promulgated (Constitution, Article 197). Laws are subject to constitutional review by the constitutional court, where the judges must be approved by the Senate (Constitution, Article 187; 228).

In sum, the Burundian electoral system attempts to guarantee an equitable power balance between the two major ethnic groups, while also guaranteeing a minimum representation for one small minority. This is done by imposing requirements on nomination percentage for the National Assembly, appointment by the electoral commission from predefined lists, by ensuring bi-ethnic provisional delegations to the Senate, and by imposing requirements on the final distribution of seats in both houses. Considering the 40 percent quota, the Tutsis are severely over-represented in parliament and the executive, constituting only 14 percent of the population. The two-thirds majority requirement provides even further protection, making it impossible for the Hutu majority to pass laws without some support of the Tutsi minority.

The Arusha Agreement ended a 13 year-long civil war between the Hutu majority and the Tutsi minority, which had been in power since Burundi achieved in dependence in 1962. The agreement aimed to devise a power-sharing formula including a quota that would make the Tutsi minority over-represented in parliament in order to enable them to defend their rights and interests. While the 2005 elections went calmly, the political situation has since deteriorated. The former rebel group, Conseil national pour la défense de la démocratie – Forces de défense de la démocratie (CNDD-FDD), gained complete control of all branches of government, and the security sector was restructured with CNDD-FDD fighters coming to constitute 40 percent of the army.90 The government has arrested critics, stifled the press and tightened control of the economy. It also launched military operations against the last remaining rebel group, the Palipehutu-FNL. CNDD-FDD still displays some of its authoritarian character, which is a legacy from its past as a guerrilla movement. 2008 was marked by political infighting and repeated purges within the party.

The ethnic balance stipulated in the constitution has been maintained, and CNDD-FDD emerged as the most multi-ethnic party after the elections, with 30 percent of its elected deputies being Tutsi. While the first post-election cabinet conformed to the ethnic formula, it did not comply with the requirements of a proportional representation of the political parties.91 Parliamentary work was seriously hampered as a result of friction between CNDD- FDD and the opposition over the composition of the government, as well as within the CNDD-FDD itself over the authoritarian style of the party leadership and lack of transparency within the party. These combined factors sparked a series of defections from the CNDD-FDD in parliament, and a boycott by opposition parties. After protracted negotiations, a new cabinet was appointed that gained the acceptance of the major opposition parties. However, the underlying causes of the 2007 parliamentary crisis have not been resolved.

90 International Crisis Group 2005. 91 For a breakdown of the cabinet and parliament, see Falch 2009: 10-11.